Law Notes_ Administrative Law.pdf

8/12/2019 Law Notes_ Administrative Law.pdf

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Criminology

Constitutional Law II

Sales of Goods Act

Public International Law

Transfer of Property

Evidence Act

Family Law II

Criminal Law II

FRIDAY, JANUARY 26, 2007

Administrative Law

Administrative Law & Rule of Law

It is impossible to attempt any precise definition of administrative law

which can cover the entire range of administrative process. TheAmerican approach to administrative law is denoted by the definition by

the definition of administrative law as propounded by Davis.

According to him, administrative law is the law concerning the powers

and procedures of administrative agencies, including especially the law

governing judicial review of administrative action. It does not include

the enormous mass of substantive law produced by the agencies. An

administrative agency, according to him, is a governmental authority,

other than a court and other than a legislative body, which affects the

rights of private parties through either adjudication or rule-making.

The emphasis in the definition is on judicial control of administrative

agencies. But other control mechanisms, like the parliamentary control

of delegated legislation, control through administrative appeals, and

through the ombudsman type institution, are quite important and

significant and need to be studied for a fuller comprehension of

administrative law.

Dicey has defined administrative law as denoting that portion of a

nations legal system which determines the legal status and liabilities of

all state officials, which defines the rights and liabilities of private

individuals in their dealings with public officials, and which specifies

the procedure by which those rights and liabilities are enforced. The

definition is narrow and restrictive in so far as it leaves out of

consideration many aspects of administrative law, e.g., it excludes many

administrative authorities, which strictly speaking, are not officials of

the states such as public corporations; it also excludes procedures of

administrative authorities or their various powers and functions, or

their control by Parliament or in other ways, Diceys formulation refers

primarily to one aspect of administrative law, i.e. control of public

officials. Dicey formulated his definition with the droit administratif in

view.

Sir Ivor Jennigs defines administrative law as the law relating to

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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 theiroperation.

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 isdiscretion there is room for arbitrariness. The term Rule of Law is used

in contradiction to rule of man and rule according to law. It is modern

name for natural law.

The term Rule of Law can be used in two senses: (i) formalistic sense:

and (ii) ideological sense. If used in the formalistic sense it refers to

organized power as opposed to a rule by one man and if used in an

ideological sense it refers to the regulation of the relationship of the

citizen and the government and in this sense it becomes a concept of

varied interest and contents.

In its ideological sense, the concept of Rule of Law represents an ethical

code for the exercise of public power in any country. Strategies of this

code may differ from society to society depending on the societal needs

at any given time, but its basis postulates are universal covering all

space and time. These postulates include equality, freedom and

accountability.

Diceys formulation of the concept of Rule of Law, which according to

him forms the basis of the English Constitutional Law, contains three

principles:

(i) Absence of discretionary power in the hands of the government

officials.


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(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 commoncourts, 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


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beginning of administrative law in England under the force of

circumstances. However, since then, things have changed rather

demonstrably.

Diceys concept of Rule of Law has had its advantages and

disadvantages. Although, complete absence of discretionary powers, or

absence of inequality, are not possible in this administrative age, yet the

concept of the rule of law has been used to spell out many propositions

and deductions to restrain an undue increase in administrative powers

and to create controls over it. The rule of law has given to the countries

following the common law system, a philosophy to curb the

governments power and to keep it within bounds; it has provided a sort

of touchstone or standard to judge and test administrative law in the

country at a given time.

Similarly, rule of law is also associated with the supremacy of courts.

Therefore, in the ultimate analysis, courts should have the power to

control administrative action and any overt diminution of that power is

to be criticized. The principle implicit in the rule of law that the

executive must act under the law, and not by its own decree or fiat, is

still a cardinal principle of the common law system. It also serves as thebasis of judicial review of administrative action for the judiciary sees to

it that the executive keeps itself within the limits of law and does not

overstep the same.

But there has been a negative side of the concept of rule of law as well.

A grave defect in Diceys analysis is his insistence on the absence not

only of arbitrary but even of wide discretionary powers. The needs of

the modern government make wide discretionary power inescapable.

Perhaps the greatest defect of the concept has been its misplaced trust

in the efficacy of judicial control as a panacea for all evils, and

somewhat irrational attitude generated towards the French system.If the rule of law hampered the recognition of administrative law in

England, the doctrine of separation of powers had an intimate impact

on the growth of administrative process and administrative law in the

United States. It has been characterized as the principal doctrinal

barrier to the development of administrative law in the U.S.A. The

doctrine of separation of powers is implict in the American

Constitution. It emphasizes the mutual exclusiveness of the three

organs of the government. The form of government in the U.S.A.,

characterised as the presidential, is based on the theory that there

should be separation between the executive and legislature.

Of course, the doctrine of separation of power does not apply rigorously

even in the United States and some exceptions to it are recognized in

the Constitution itself. For instance, a bill passed by the Congress may

be vetoed by the President, and to this extent, the President may be said

to be exercising legislative functions. Again, certain appointments of

high officials are to be approved by the Senate, and also the treaties

made by the president do not take effect until they are approved by the

Senate; to the extent, the Senate may be said to be exercising executive

functions. This exercise of some functions of one organ by the other is

justified on the basis of checks and balances, i.e. the functioning of one


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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 dogmaticdivision 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 afterlegislative 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


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independent body which was to be free from executive influence. No

such body was constituted.

The primary issue, in this case, is whether the High court has the

competence to issue directions to the State Government to constitute

Statutory Body for selection and whether selection made by any other

authority is invalid on the ground alone.

The Supreme court observed that although the doctrine of separation of

powers hasnt been recognized under the Constitution, the

Constitution-makers have carefully defined the functions of various

organs of the State. Legislature, executive and judiciary have to function

within their own where demarcated under the Constitution. No organ

can usurp the functions assigned to another. The functioning of

democracy depends upon the strength and independence of each of its

organs. Legislature and executive have all the powers including that of

finance. Judiciary has power to ensure that the aforesaid two main

organs of State function within the constitutional limits. Judicial review

is a powerful weapon to restrain unconstitutional exercise of power by

legislature and executive. The only check on courts own exercise is

power is the self-imposed discipline of judicial restraint.While exercising power of judicial review of administrative action, the

court is not an appellate authority. The Constitution does not permit the

court to direct or advise the executive in matters of policy or to

sermonize qua any matter which under the Constitution lies within the

sphere of legislature or executive, provided these authorities do not

transgress their constitutional limits or statutory powers.

It is entirely a matter for the executive branch of the Government to

decide whether or not to introduce any particular legislation. Of course,

any member of the legislature can also introduce legislation but the

court certainly cannot mandate the executive or any member oflegislature to initiate legislation, however necessary or desirable the

court may consider it to be. That is not a matter which is within the

sphere of the functions and duties allocated to the judiciary under the

Constitution.

When the Constitution gives power to the executive government to

lay-down policy and procedure for admission to medical colleges in the

State then the High Court has no authority to divest the executive of

that power. The State Government in its executive power, in the absence

of any law on the subject, is the competent authority to prescribe

method and procedure for admission to medical colleges by executive

instructions, but the High Court transgressed its self imposed limits in

issuing the directions for constituting statutory authority. However, the

selection procedure is always open to judicial review on the grounds of

unreasonableness, etc.

In conclusion, Doctrine of separation of Powers in todays context of

Liberalization, privatization and globalization cannot be interpreted to

mean either separation of powers or check and balance or principle of

restraint but community powers exercised in the spirit of cooperation

by various organs of the State in the best interest of the people.


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occasion when there is sudden need of legislature action. The

legislature cant meet at short notice, thus executive need to have stand

by power.

Administrative rule-making or delegated legislation in India is

commonly expressed by the term statutory rules and orders.

Parliament follows no particular policy in choosing the forms of

delegated legislation, and there is a wide range of varieties and

nomenclature. The Delegated legislation can be classified under various

classes depending on the purpose to be achieved:

1. Title based classification: An Act may empower an authority to make

regulations, rules or bye-laws, to make orders, or to give directions.

There is scarcely a limit to the varieties of legislative provisions which

may exist under different names.

2. Discretion-based classification ( Conditional Legislation): Another

classification of administrative rule-making may be based on discretion

vested in rule-making authority. On the basis of discretion

administrative rule-making may be classified into subordinate and

contingent or conditional legislation.

3. Purpose-based classification: Another classification of administrativerule-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 assub-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.


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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 doctrineof 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 thedelegation 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


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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 notbe 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 ofdelegation 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


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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 likedelegated 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 ofdelegated 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.


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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 moredestructive of freedom than any of mans other inventions. Therefore,

there has been a constant conflict between the claims of the

administration to an absolute discretion and the claims of subjects to a

reasonable exercise of it. Discretionary power by itself is not pure evil

but gives much room for misuse.

Discretion is the all-pervading phenomenon of modern age. Discretion

is conferred in the area of rule-making or delegated legislation, e.g.,

when the statutory formula says that the government may make rules

which it thinks expedient to carry out the purposes of the Act, in effect,

a broad discretion and choice are being conferred on the government tomake 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,


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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 behaviourstill 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


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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 hismercy 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 soas 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


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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 availabilityat 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. PrivateEducation Institutions (Regulation) Act made it mandatory for the

private educational institutions to obtain permission of the competent

authority for running them. The validity of the Act was challenged on

the grounds that it did not lay down any guidelines for the exercise of

the power by the delegated authority as a result of which the authority

was in a position to act according to his whims. The Act did not indicate

conditions for the exercise of power by the competent authority and was

therefore discriminatory and arbitrary. It was held that the Act

conferred unguided power on the authority and was therefore ultra

vires and illegal. The purpose of the Act was to regulate private

educational institutions but it did not give any idea as to the manner in

which the control over the institutions could be exercised. Section 6 of

the Acts provides for the grant of permission and Section 7 empowered

the competent authority to cancel the permission in certain

circumstances. The Court observed that Sec. 6 does not give any idea as

to the conditions which it has to fulfil before it can apply for permission

under the Act. No tests are indicated for refusing permission or

canceling under Sec. 7 of an already granted permission. The procedural

safeguard provided under Sec. 6 doesnt by itself protect the applicant

from discriminatory treatment.


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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 administrativediscretion. 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. Thisis 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


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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 vendettaagainst 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


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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 anyconsiderations 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 mustnecessarily 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


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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 totallyunaware 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 believethat 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.


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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 byself-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 theauthority 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


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personal bias, it is essential to prove that there is a reasonable

suspicion of bias or a real likelihood of bias. The reasonable

suspicion test looks mainly to outward appearance, and the real

likelihood test focuses on the courts own revaluation of possibilities.

What the courts see is whether there is a reasonable ground of believing

that the deciding officer was likely to have been biased. In deciding the

question of bias judges have to take into consideration the human

possibilities and the ordinary course of human conduct.

In Kumaon Mandal Vikas Nigam V. Girja Shankar Pant, the Supreme

Court stated that the test of real likelihood and reasonable suspicion

are really inconsistent with each other. We think that the reviewing

authority must make a determinate on the basis of the whole evidence

before it, whether a reasonable man would in the circumstances infer

that there is real likelihood of bias. The Court must look at the

impression which other people have. These follows from the principle

justice must not only be done but seen to be done. If right minded

persons would think that there is real likelihood of bias on the part of

an inquiry officer, he must not conduct the enquiry; nevertheless, there

must be a real likelihood of bias. Surmise or conjecture would not beenough. 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 thatLannon 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


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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, thepetitioner 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 ofdepartmental 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


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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 tosecure 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)


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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 andreasonable 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 thatunless 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


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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 upondisclosure 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 theappellate 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


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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


41 10/22/2011


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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 authorityshould 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 anadministrative 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 fi

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