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    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


    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


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

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


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


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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


    (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


    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


    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


    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


    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


    (2) Indian Parliament was never considered an agent of anybody, and

    therefore the doctrine of delegates non potest delegare has no


    (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


    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


    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


    (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


    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


    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


    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


    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


    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


    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

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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


    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