In such a context, a study of administrative law becomes of great significance Grant of permit by Regional Transport Authority

Grant of permit by Regional Transport Authority. Attributes of administrative decision-making action or quasi-judicial action and the distinction between judicial, quasi-judicial and administrative action. (iii) Rule-application action or administrative action – Though the distinction between quasi-judicial and administrative action has become blurred, yet it does not mean that there is no distinction between the two. If two persons are wearing a similar coat, it does not mean that there is no difference between them. The difference between quasi-judicial and administrative action may not be of much practical consequence today but it may still be relevant in determining the measure of natural justice applicable in a given situation. In A.K. Kraipak v. Union of India, the Court was of the view that in order to determine whether the action of the administrative authority is quasi-judicial or administrative, one has to see the nature of power conferred, to whom power is given, the framework within which power is conferred and the consequences. Therefore, administrative action is the residuary action which is neither legislative nor judicial. It is concerned with the treatment of a particular situation and is devoid of generality. It has no procedural obligations of collecting evidence and weighing argument. It is based on subjective satisfaction where decision is based on policy and expediency. It does not decide a right though it may affect a right. However, it does not mean that the principles of natural justice can be ignored completely when the authority is exercising “administrative powers”. Unless the statute provides otherwise, a minimum of the principles of natural justice must always be observed depending on the fact situation of each case. No exhaustive list of such actions may be drawn; however, a few may be noted for the sake of clarity: 1 ) Making a reference to a tribunal for adjudication under the Industrial Disputes Act. 2) Functions of a selection committee. Administrative action may be statutory, having the force of law, or non statutory, devoid of such legal force. The bulk of the administrative action is statutory because a statute or the Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing directions to subordinates not having the force of law, but its violation may be visited with disciplinary action. Though by and large administrative action is discretionary and is based on subjective satisfaction, however, the administrative authority must act fairly, impartially and reasonable. Therefore, at this stage it becomes very important for us to know what exactly is the difference between Administrative and quasi-judicial Acts. Module – 1 31 Thus broadly speaking, acts, which are required to be done on the subjective satisfaction of the administrative authority, are called ‘administrative’ acts, while acts, which are required to be done on objective satisfaction of the administrative authority, can be termed as quasi-judicial acts. Administrative decisions, which are founded on pre-determined standards, are called objective decisions whereas decisions which involve a choice as there is no fixed standard to be applied are so called subjective decisions. The former is quasi-judicial decision while the latter is administrative decision. In case of the administrative decision there is no legal obligation upon the person charged with the duty of reaching the decision to consider and weigh, submissions and arguments or to collate any evidence. The grounds upon which he acts and the means, which he takes to inform himself before acting, are left entirely to his discretion. The Supreme Court observed, “It is well settled that the old distinction between a judicial act and administrative act has withered away and we have been liberated from the pestilent incantation of administrative action. (iv) Ministerial action – A further distillate of administrative action is ministerial action. Ministerial action is that action of the administrative agency, which is taken as matter of duty imposed upon it by the law devoid of any discretion or judgment. Therefore, a ministerial action involves the performance of a definitive duty in respect of which there is no choice. Collection of revenue may be one such ministerial action. 1. Notes and administrative instruction issued in the absence of any 2. If administrative instructions are not referable to any statutory authority they cannot have the effect of taking away rights vested in the person governed by the Act. DELEGATED LEGISLATION One of the most significant developments of the present century is the growth in the legislative powers of the executives. The development of the legislative powers of the administrative authorities in the form of the delegated legislation occupies very important place in the study of the administrative law. We know that there is no such general power granted to the executive to make law it only supplements the law under the authority of legislature. This type of activity namely, the power to supplement legislation been described as delegated legislation or subordinate legislation. Why delegated legislation becomes inevitable The reasons as to why the Parliament alone cannot perform the jobs of legislation in this changed context are not far to seek. Apart from other considerations the inability of the Parliament to supply the necessary quantity and quality legislation to the society may be attributed to the following reasons : Module – 1 32 i) Certain emergency situations may arise which necessitate special measures. In such cases speedy and appropriate action is required. The Parliament cannot act quickly because of its political nature and because of the time required by the Parliament to enact the law. ii) The bulk of the business of the Parliament has increased and it has no time for the consideration of complicated and technical matters. The Parliament cannot provide the society with the requisite quality and quantity of legislation because of lack of time. Most of the time of the Parliament is devoted to political matters, matters of policy and particularly foreign affairs.. iii) Certain matters covered by delegated legislation are of a technical nature which require handling by experts. In such cases it is inevitable that powers to deal with such matters is given to the appropriate administrative agencies to be exercised according to the requirements of the subject matter. "Parliaments" cannot obviously provide for such matters as the members are at best politicians and not experts in various spheres of life. iv) Parliament while deciding upon a certain course of action cannot foresee the difficulties, which may be encountered in its execution. Accordingly various statutes contain a 'removal of difficulty clause' empowering the administration to remove such difficulties by exercising the powers of making rules and regulations. These clauses are always so worded that very wide powers are given to the administration. iv) The practice of delegated legislation introduces flexibility in the law. The rules and regulations, if found to be defective, can be modified quickly. Experiments can be made and experience can be profitability utilized. However the attitude of the jurists towards delegated legislation has not been unanimous. The practice of delegated legislation was considered a factor, which promoted centralization. Delegated Legislation was considered a danger to the liberties of the people and a devise to place despotic powers in few hands. It was said that delegated legislation preserved the outward show of representative institutions while placing arbitrary and irresponsible power in new hands. But the tide of delegated legislation was high and these protests remained futile. A very strong case was made out against the practice of Delegated Legislation by Lord Hewart who considered increased governmental interference in individual activity and considered this practice as usurpation of legislative power of the executive. He showed the dangers inherent in the practice and argued that wide powers of legislation entrusted to the executive lead to tyranny and absolute despotism. The criticism was so Module – 1 33 strong and the picture painted was so shocking that a high power committee to inquire into matter was appointed by the Lord Chancellor. This committee thoroughly inquired into the problem and to the conclusion that delegated legislation was valuable and indeed inevitable. The committee observed that with reasonable vigilance and proper precautions there was nothing to be feared from this practice. Nature and Scope of delegated legislation Delegated legislation means legislation by authorities other than the Legislature, the former acting on express delegated authority and power from the later. Delegation is considered to be a sound basis for administrative efficiency and it does not by itself amount to abdication of power if restored to within proper limits. The delegation should not, in any case, be unguided and uncontrolled. Parliament and State Legislatures cannot abdicate the legislative power in its essential aspects which is to be exercised by them. It is only a nonessential legislative function that can be delegated and the moot point always lies in the line of demarcation between the essential and nonessential legislative functions. The essential legislative functions consist in making a law. It is to the legislature to formulate the legislative policy and delegate the formulation of details in implementing that policy. Discretion as to the formulation of the legislative policy is prerogative and function the legislature and it cannot be delegated to the executive. Discretion to make notifications and alterations in an Act while extending it and to effect amendments or repeals in the existing laws is subject to the condition precedent that essential legislative functions cannot be delegated authority cannot be precisely defined and each case has to be considered in its setting. In order to avoid the dangers, the scope of delegation is strictly circumscribed by the Legislature by providing for adequate safeguards, controls and appeals against the executive orders and decisions. The power delegated to the Executive to modify any provisions of an Act by an order must be within the framework of the Act giving such power. The power to make such a modification no doubt, implies certain amount of discretion but it is a power to be exercised in aid of the legislative policy of the Act and cannot i) travel beyond it, or ii) run counter to it, or iii) certainly change the essential features, the identity, structure or the policy of the Act. Under the constitution of India, articles 245 and 246 provide that the legislative powers shall be discharged by the Parliament and State legislature. The delegation of legislative power was conceived to be inevitable and therefore it was not prohibited in the constitution. Further, Articles 13(3)(a) of Module – 1 34 the Constitution of India lays down that law includes any ordinances, order by- law, rule regulation, notification, etc. Which if found inviolation of fundamental rights would be void. Besides, there are number of judicial pronouncements by the courts where they have justified delegated legislation. For e.g. In re Delhi Laws Act case, AIR 1961 Supreme Court 332; Vasantlal Magan Bhaiv. State of Bombay, air 1961 SC 4; S. Avtar Singh v. State of Jammu and Kashmir, AIR 1977 J&K 4. While commenting on indispensability of delegated legislation JusticeKrishna Iyer has rightly observed in the case of Arvinder Singh v. State of Punjab, AIR , that the complexities of modern administration are so bafflingly A1979 SC 321 intricate and bristle with details, urgencies, difficulties and need for flexibility that our massive legislature may not get off to a start if they must directly and comprehensively handle legislative business in their plentitude, proliferation and particularization Delegation of some part of legislative power becomes a compulsive necessity for viability. A provision in a statute which gives an express power to the Executive to amend or repeal any existing law is described in England as Henry viii Clause because the King came to exercise power to repeal Parliamentary laws. The said clause has fallen into disuse in England, but in India some traces of it are found here and there, for example, Article 372 of the Constitution authorizes the president of India to adopt pro Constitutional laws, and if necessary, to make such adaptations and modifications, (whether by way of repeal or amendment) so as to bring them in accord with the provisions of the Constitution. The State Reorganization Act, 1956 and some other Acts similar thereto also contain such a provision. So long as the modification of a provision of statute by the Executive is innocuous and immaterial and does not effect any essential change in the matter. Types of delegation of legislative power in India There are various types of delegation of legislative power. 1. Skeleton delegation In this type of delegation of legislative power, the enabling statutes set out broad principles and empowers the executive authority to make rules for carrying out the purposes of the Act. A typical example of this kind is the Mines and Minerals (Regulation and Development) Act, 1948. 2. Machinery type This is the most common type of delegation of legislative power, in which the Act is supplemented by machinery provisions, that is, the power is conferred on the concerned department of the Government to prescribe – i) The kind of forms ii) The method of publication Module – 1 35 iii) The manner of making returns, and v) Such other administrative details In the case of this normal type of delegated legislation, the limits of the delegated power are clearly defined in the enabling statute and they do not include such exceptional powers as the power to legislate on matters of principle or to impose taxation or to amend an act of legislature. The exceptional type covers cases where – i) the powers mentioned above are given , or ii) the power given is so vast that its limits are almost impossible of definition, or iii) while limits are imposed, the control of the courts is ousted. Such type of delegation is commonly known as the Henry VIII Clause. An outstanding example of this kind is Section 7 of the Delhi Laws Act of 1912 by which the Provincial Government was authorized to extend, with restrictions and modifications as it thought fit any enactment in force in any part of India to the Province of Delhi. This is the most extreme type of delegation, which was impugned in the Supreme Court in the Delhi Laws Act case . It was held that the delegation of this type was invalid if . A.I.R. 1951 S.C.332 the administrative authorities materially interfered with the policy of the Act, by the powers of amendment or restriction but the delegation was valid if it did not effect any essential change in the body or the policy of the Act. That takes us to a term " bye-law " whether it can be declared ultra vires ? if so when ? Generally under local laws and regulations the term bye-law is used such as i) public bodies of municipal kind ii) public bodies concerned with government, or iii) corporations, or iv) societies formed for commercial or other purposes. The bodies are empowered under the Act to frame bye-laws and regulations for carrying on their administration. There are five main grounds on which any bye-law may be struck down as ultra vires. They are : a) That is not made and published in the manner specified by the Act, which authorises the making thereof; b) That is repugnant of the laws of the land; c) That is repugnant to the Act under which it is framed; Module – 1 36 d) That it is uncertain ; and e) That it is unreasonable. Modes of control over delegated legislation The practice of conferring legislative powers upon administrative authorities though beneficial and necessary is also dangerous because of the possibility of abuse of powers and other attendant evils. There is consensus of opinion that proper precautions must be taken for ensuring proper exercise of such powers. Wider discretion is most likely to result in arbitrariness. The exercise of delegated legislative powers must be properly circumscribed and vigilantly scrutinized by the Court and Legislature is not by itself enough to ensure the advantage of the practice or to avoid the danger of its misuse. For the reason, there are certain other methods of control emerging in this field. The control of delegated legislation may be one or more of the following types: - 1) Procedural; 2) Parliamentary; and 3) Judicial Judicial control can be divided into the following two classes: - i) Doctrine of ultra vires and vi) Use of prerogative writs. Procedural Control Over Delegated Legislation (A Prior consultation of interests likely to be affected by proposed delegated Legislation From the citizen's post of view the must beneficial safeguard against the dangers of the misuse of delegated Legislation is the development of a procedure to be followed by the delegates while formulating rules and regulations. In England as in America the Legislature while delegating powers abstains from laying down elaborate procedure to be followed by the delegates. But certain acts do however provide for the consultation of interested bodies. and sometimes of certain Advisory Committees which must be consulted before the formulation and application of rules and regulations. This method has largely been developed by the administration independent of statute or requirements. The object is to ensure the participation of affected interests so as to avoid various possible hardships. The method of consultation has the dual merits of providing as opportunity to the affected interests to present their own case and to enable the administration to have a first-hand idea of the problems and conditions of the field in which delegated legislation is being contemplated. (B) Prior publicity of proposed rules and regulations Another method is antecedent publicity of statutory rules to inform those likely to be affected by the proposed rules and regulations so as to enable them to make representation for consideration of the rule-making authority. The rules of Module – 1 37 Publication Act, 1893, S.I. provided for the use of this method. The Act provided that notice of proposed 'statutory rules' is given and the representations of suggestions by interested bodies be considered and acted upon if proper. But the Statutory Instruments Act, 1946 omitted this practice in spite of the omission, the Committee on Ministers Powers 1932, emphasized the advantages of such a practice. (c) Publication of Delegated Legislation - Adequate publicity of delegated legislation is absolutely necessary to ensure that law may be ascertained with reasonable certainty by the affected persons. Further the rules and regulations should not come as a surprise and should not consequently bring hardships which would naturally result from such practice. If the law is not known a person cannot regulate his affiars to avoid a conflict with them and to avoid losses. The importance of these laws is realised in all countries and legislative enactments provide for adequate publicity. (d) Parliamentary control in India over delegation In India, the question of control on rule-making power engaged the attention of the Parliament. Under the Rule of Procedure and Conduct of Business of the House of the People provision has been made for a Committee which is called 'Committee on Subordinate Legislation'. The First Committee was constituted on Ist December, 1953 for i) Examining the delegated legislation, and ii) Pointing out whether it has- a) Exceeded or departed from the original intentions of the Parliament, or b) Effected any basic changes. Originally, the committee consisted to 10 members of the House and its strength was later raise to 13 members. It is usually presided over by a member of the Opposition. The Committee i) scrutinizes the statutory rules, orders. Bye-laws, etc. made by any-making authority, and ii) report to the House whether the delegated power is being properly exercised within the limits of the delegated authority, whether under the Constitution or an Act of Parliament. It further examines whether i) The Subordinate legislation is in accord with the general objects of the Constitution or the Act pursuant to which it is made; ii) it contains matter which should more properly be dealt within an Act of Parliament; iii) it contains imposition of any tax; Module – 1 38 iv) it, directly or indirectly, ousts the jurisdiction of the courts of law; v) it gives retrospective effect to any of the provisions in respect of which the Constitution or the Act does not expressly confer any such power; vi) It is constitutional and valid; vii) it involves expenditure from the Consolidated Fund of India or the Public Revenues; viii) its form or purpose requires any elucidation for nay reason; ix) it appears to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it is made; and x) there appears to have been unjustifiable delay in its publication on its laying before the Parliament. The Committee of the first House of the People submitted a number of reports and continues to do useful work. The Committee considered the question of bringing about uniformity in the provisions of the Acts delegating legislative powers. It made certain recommendations in its First report (March, 1954) which it later modified in its Third Report (May, 1955) after noting the existing divergent legislation in India. The following are the modified recommendations 1. That, in future, the Acts containing provisions for making rules, etc., shall lay down that such rules shall be laid on the Table as soon as possible. 2. That all these rules shall be laid on the Table for a uniform and total period of 30 days before the date of their final publication. But it is not deemed expedient to lay any rule on the Table before the date of publication; such rule may be laid as soon as possible after publication. An Explanatory Note should, however, accompany such rules at the time they are so laid, explaining why it was not deemed expedient to lay these rules on the Table of the House before they were published. 3. On the recommendation of the Committee, the bills are generally accompanied with Memoranda of Delegated Legislation in which; -. i) full purpose and effect of the delegation of power to the subordinate authorities, ii) the points which may be covered by the rules, iii) the particulars of the subordinate authorities or the persons who are to exercise the delegated power, and iv) the manner in which such power has to be exercised, are mentioned. They point out if the delegation is of normal type or unusual. Module – 1 39 The usefulness of the Committee lies more in ensuring that the standards of legislative rule-making are observed that in merely formulating such standards. It should effectively point out the cases of any unusual or unexpected use of legislative power by the Executive. Parliamentary control of delegated legislation is thus exercised by i) taking the opportunity of examining the provisions providing for delegation in a Bill, and ii) getting them scrutinized by parliamentary committee of the Rules, Regulations, Bye-laws and orders, When the Bill is debated,---- i) the issue of necessity of delegation, and ii) the contents of the provisions providing for delegation, can be taken up. After delegation is sanctioned in an Act, the exercise of this power by the authority concerned should receive the attention of the House of the Parliament. Indeed, it is this later stage of parliamentary scrutiny of the delegated authority and the rules as framed in its exercise that is more important. In a formal sense, this is sought to be provided by making it necessary that the rules, etc., shall be laid on the Table of the House. The members are informed of such laying in the daily agenda of the House. The advantage of this procedure is that members of both the Houses have such chances as parliamentary procedure – i) the modification or the repeal of the enactment under which obnoxious rules and orders are made, or ii) revoking rules and orders themselves. The matter may be discussed in the House during the debates or on special motions. The provisions for laying the rule, etc., are being made now practically in every Act which contains a rule making provision. Such provisions are enacted in the following form: - (1) The Government may by notification in the official Gazette, make rules for carrying out all or any of the purposes of this Act. (2) Every rule made under this section shall be laid, as soon as may be, after it is made, before each House of Parliament while it is in session for a total period of fourteen days which may be comprised in one session or in the successive session immediately following, both Houses agree in making any modification in the Rule or in the annulment of the rule. The rule thereafter have effect only in such modified form or shall stand annulled, as the case may be, so however that any such modification or annulment shall Module – 1 40 be without prejudice to the validity of anything previously done under that rule." If the Parliamentary control is not effective it becomes necessary to provide for certain procedural safeguards, which go to make the delegated legislation ascertainable and accessible. Control of delegated legislation by procedure ---- The following requirements are made necessary for the exercise of the delegated authority under different statutes so that procedural safeguards are ensured. i) The Doctrine of ultra vires---- The chief instrument in the hands of the judiciary to control delegated legislation is the "Doctrine of ultra vires." The doctrine of ultra vires may apply with regard to- i) procedural provision; and ii) substantive provisions. i) Procedural defects The Acts of Parliament delegating legislative powers to other bodies or authorities often provide certain procedural requirements to be complied with by such authorities while making rules and regulations, etc. These formalities may consist of consultation with interested bodies, publication of draft rules and regulations, hearing of objections, considerations of representations etc. If these formal requirements are mandatory in nature and are disregarded by the said authorities then the rules etc. so made by these authorities would be invalidated by the Judiciary. In short subordinate legislation in contravention of mandatory procedural requirements would be invalidated by the court as being ultra vires the parent statute. Provision in the parent Statute for consulting the interested parties likely to be affected, may, in such cases, avoid all these inconveniences and the Railway authorities may not enact such rule after they consult these interests. A simple provision regarding consultation thus assumes importance. On the other hand, if the procedural requirements were merely of directory nature, then a disregard thereof would not affect the validity of subordinate legislation. The fact that procedural requirements have far reaching effects, may be made clear by just one example. Suppose the Railway authorities want to relieve pressure of work of unloading goods during daytime at a station amidst a big and brisk business center. The public wants a reduction in the traffic jams due to heavy traffic because of unloading. The traffic authorities and Railway authorities decide to tackle the problem effectively by making the rule that the unloading be done during late hours of night. The railway authorities make an order to this effect, without consulting interested bodies. Such rule might cause many hardships e.g. – i) The conditions of labour are such that unloading of goods during the night would adversely affect the profit margin as the workers would charge more if they work in night shifts. Module – 1 41 ii) It may not be without risk to carry money from one place to another during late hours of night. If safety measures are employed, that in addition to the element of a greater risk, expenses would increase, adversely affecting the margin of profits. iii) The banking facilities may not be available freely during night. iv) Additional staff may be necessary in various concerns for night duty. v) This business are loading and unloading during night may cause inconvenience and disturbance in the locality. Now infect of these difficulties another alternative which appears to be desirable is better supervision of unloading and better regulation of traffic by posting more police officers and stricter enforcement of traffic laws. Provisions in the parent statute for consulting the interested parties likely to be affected may, in such cases, avoid all these inconveniences, and the Railway authorities may not act such a rule after they consult these interests. A simple provision regarding consultation thus assumes importance. The question of the effectiveness of the application of the doctrine of ultra vires, so far as procedure is concerned, would largely depend upon the words used in the particular statue. If the words are specific and clearly indicate the bodies to be consulted, then it would be possible to show noncompliance. But in case where the minister is vested with the discretion to consult these bodies which he considers to be representative of the interests likely to be affected or where he is to consult such bodies, if any, it is very difficult to prove noncompliance with the procedural requirements. ( ii) Substantive Defects In case of delegated legislation, unlike and Act of the Parliament, the court can inquire into whether it is with in the limits laid down by the present statute. If a piece of delegated legislation were found to be beyond such limits, court would declare it to be ultra vires and hence invalid. (R.V.Minister of Health, (1943), 2 ALL ER591).The administrative authorities exercising legislative power under the authority of an Act of the Parliament must do so in accordance with the terms and objects of such statute. To find out whether administrative authorities have properly exercised the powers, the court have to construe the parent statute so as to find out the intention of the legislature. The existence and extent of the powers of administrative authorities is to be affixed in the light of the provisions of the parent Act. Mandatory or directory procedural provision The question whether particular procedural requirements are mandatory or directory must be examined with care. In case the statute provided for the effect of noncompliance of such requirements, then it is to be followed by the courts without difficulty. But uncertainty creeps in where the statute is silent on the point and decision is to be made by the judiciary. The courts is determining whether the provisions to this effect in a particular Statute are mandatory or directory are guided by Module – 1 42 various factors. They must take into consideration the whole scheme of legislation and particularly evaluate the position of such provisions in their relation with the object of legislation. The nature of the subject matter to be regulated, the object of legislation, and the provisions as placed in the body of the Act must all be considered carefully, so as to find out as to what was the intention of the legislature. Much would depend upon the terms and scheme of a particular legislation, and hence broad generalizations in this matter are out of place. Judicial control over delegated legislature Judicial control over delegated legislature can be exercised at the following two levels :- 1) Delegation may be challenged as unconstitutional; or 2) That the Statutory power has been improperly exercised. The delegation can be challenged in the courts of law as being unconstitutional, excessive or arbitrary. The scope of permissible delegation is fairly wide. Within the wide limits. Delegation is sustained it does not otherwise, infringe the provisions of the Constitution. The limitations imposed by the application of the rule of ultra vires are quite clear. If the Act of the Legislature under which power is delegated, is ultra vires, the power of the legislature in the delegation can never be good. No delegated legislation can be inconsistent with the provisions of the Fundamental Rights. If the Act violates any Fundamental Rights the rules, regulations and bye-laws framed there under cannot be better. Where the Act is good, still the rules and regulations may contravene any Fundamental Right and have to be struck down. The validity of the rules may be assailed as the stage in two ways :- i) That they run counter to the provisions of the Act; and ii) That they have been made in excess of the authority delegated by the Legislature. The method under these sub-heads for the application of the rule of ultra vires is described as the method of substantive ultra vires. Here the substance of rules and regulations is gone into and not the procedural requirements of the rule making that may be prescribed in the statute. The latter is looked into under the procedural ultra vires rule. Power of Parliament to repeal law Under the provision to clause (2) of Article 254, Parliament can enact at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State, Ordinarily, the Parliament would not have the power to repeal a law passed by the State Legislature even though it is a law with respect to one of the matters enumerated in the Concurrent List. Section 107 of the Government of India Act, 1935 did not contain any such power. Art. 254 (2) of the Constitution of India is in substance a reproduction of section 107 of the Module – 1 43 1935 Act, the concluding portion whereof being incorporated in a proviso with further additions. Now, by the proviso to Art. 254 (2), the Indian Constitution has enlarged the powers of Parliament and, under that proviso, Parliament can do what the Central Legislature could not do under section 107 of the Government of India Act, and can enact a law adding to, amending, varying or repealing a law of the State when it relates to a matter mentioned in the concurrent List. Therefore the Parliament can, acting under the proviso to Art. 254 (2) repeal a State Law. While the proviso does confer on Parliament a power to repeal a law passed by the State Legislature, this power is subject to certain limitations. It is limited to enacting a law with respect to the same matter adding to, amending, varying or repealing a law so made by the State Legislature. The law referred to here is the law mentioned in the body of Art. 254 (2), It is a law made by the State Legislature with reference to a matter in the Concurrent List containing provisions repugnant to an earlier law made by Parliament and with the consent to an earlier law made by Parliament and with the consent of the President. It is only such a law that can be altered, amended, repealed under the proviso. The power of repeal conferred by the proviso can be exercised by Parliament alone and cannot be delegated to an executive authority. The repeal of a statute means that the repealed statute must be regarded as if it had never been on the statute book. It is wiped out from the statute book. In the case of Delhi Laws Act, 1951 S.C.R. 747, it was held that to repeal or abrogate an existing law is the exercise of an essential legislative power. Parliament, being supreme, can certainly make a law abrogating or repealing by implication provisions of any preexisting law and no exception can be taken on the ground of excessive delegation to the Act of the Parliament itself. (a) Limits of permissible delegation When a legislature is given plenary power to legislate on a particular subject, there must also be an implied power to make laws incidental to the exercise of such power. It is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power. A legislature cannot certainly strip itself of its essential functions and vest the same on an extraneous authority. The primary duty of law making has to be discharged by the legislature itself but delegation may be reported to as a subsidiary or ancillary measure. (Edward Mills Co. Ltd. v. State of Ajmer, (1955) 1. S.C.R. 735) Mahajan C.J. in Hari Shankar Bagla v. State of Madya Pradesh, A.I.R. 1954 S.C. 555 : (1955) 1.S.C.R. 380 at p. 388 observed : "The Legislature cannot delegate its functions of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Module – 1 44 legislature must declare the policy of the law and the legal principles which are to control and given cases and must provide a standard to guide the officials of the body in power to execute the law". Therefore the extent to which delegation is permissible is well settled. The legislature cannot delegate its essential legislative policy and principle and must afford guidance for carrying out the said policy before it delegates its delegates its subsidiary powers in that behalf. (Vasant lal Maganbhai Sanjanwala v. State of Bombay, A.I.R. 1961 S.C. 4) The guidance may be sufficient if the nature of things to be done and the purpose for which it is to be done are clearly indicated. The case of Hari Shankar Bagla v. State of Madhya Pradesh, A.I.R. 1954 S.C. 465: (1955) 1 S.C.R. 380 is an instance of such legislation. The policy and purpose may be pointed out in the section conferring the powers and may even be indicated in the preamble or else where in the Act. (b) Excessive delegation as a ground for invalidity of statute In dealing with the challenge the vires of any State on the ground of Excessive delegation it is necessary to enquire whether - The impugned delegation involves the delegation of an essential legislative functions or power, and In Vasant lals case (A.I.R. 1961 S.C. 4). Subba Rao, J. observed as follows; "The constitution confers a power and imposes a duty on the legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate its functions in favour of another. But, in view of the multifarious activities of a welfare State, it (the legislature) cannot presumably work out all the details to sit the varying aspects of complex situations. It must necessarily delegate the working out of details to the executive or any other agency. But there is a danger inherent in such a process of delegation. An overburdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may- a) not lay down any policy at all; b) declare its policy in vague and general terms; c) not set down any standard for the guidance of the executive; d) confer and arbitrary power to the executive on change or modified the policy laid down by it with out reserving for itself any control over subordinate legislation. The self-effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a Court to hold on a fair, generous and liberal construction of on impugned statute whether the legislature exceeded such limits. Module – 1 45 Module – 1 46 MODULE –II START BY DOING WHAT IS NECESSARY THAN WHAT IS POSSIBLE, AND SUDDENLY YOU ARE DOING THE IMPOSSIBLE -St Francis of Assisi Module – 1 47 Contents Pages Topic: Administrative Discretion and its Control 1-17 *Judicial behaviour and administrative Discretion in India *Control at the stage of delegation of discretion *Control at the stage of exercise of the discretion *Abuse of discretion *Administrative discretion and fundamental rights under *articles 14 and19 and 31(2) of the Constitutional *Legitimates expectation as a ground of judicial review *Administrative directions *Power of inquiry and Investigation Topic: Administrative Adjudication / Tribunal *The chara cteristics of administrative tribunals *Structure of tribunals *Procedure for application to the tribunals Topic: Principles of Natural Justice or fairness *Conceptual formulation *Application of principles of natural justice to judicial, *quasi-judicial and administrative proceedings *Bias *Right to hearing *Ingredients of fair hearing *Natura l justice and Indian Constitution *Effect of Failure of natural justice Topic: Disciplinary action against Public Servants: Its significance Module – 1 48 *Constitutional Provisions *Causes of disciplinary proceedings *Types o f Disciplinary Action ADMINISTRATIVE DISCRETION AND ITS JUDICIAL CONTROL D iscretion in layman’s language means choosing from amongst the various available alternatives without reference to any predetermined criterion, no matter how fanciful that choice may be. But the term ‘Discretion’ when qualified by the word ‘administrative’ has somewhat different overtones. ‘Discretion’ in this sense means choosing from amongst the various available alternatives but with reference to the rules of reason and justice and not according to personal whims. Such exercise is not to be arbitrary, vague and fanciful, but legal and regular. The problem of administrative discretion is complex. It is true that in any intensive form of government, the government cannot function without the exercise of some discretion by the officials. But it is equally true that absolute discretion is a ruthless master. Discretionary power by itself is not pure evil but gives much room for misuse. Therefore, remedy lies in tightening the procedure and not in abolishing the power itself. There is no set pattern of conferring discretion on an administrative officer. Modern drafting technique uses the words ‘adequate’, ‘advisable’, ‘appropriate’, ‘beneficial’, ‘reputable’, ‘safe’, ‘sufficient’, ‘wholesome’, ‘deem fit’, ‘prejudicial to safety and security’, ‘satisfaction’, belief’, ‘efficient’, ‘public purpose’, etc. or their opposites. It is true that with the exercise of discretion on a case-to-case basis, these vague generalizations are reduced into more specific moulds, yet the margin of oscillation is never eliminated. Therefore, the need for judicial correction of unreasonable exercise of administrative discretion cannot be overemphasized. Judicial Behavior and Administrative Discretion in India Module – 1 49 Though courts in India have developed a few effective parameters for the proper exercise of discretion, the conspectus of judicial behavior still remains halting, variegated and residual, and lacks the activism of the American courts. Judicial control mechanism of administrative discretion is exercised at two stages: I) at the stage of delegation of discretion; II) at the stage of the exercise of discretion. ( 1) Control at stage of delegation of discretion The court exercise 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 enunciated in Part III of the Indian Constitution. Therefore, if the law confers vague and wide discretionary power on any administrative authority, it may be declared ultra vires Article 14, Article 19 and other provisions of the Constitution. In certain situations, the statute though it does not give discretionary power to the administrative authority to take action, may give discretionary power to frame rules and regulations affecting the rights of citizens. The court can control the bestowal of such discretion on the ground of excessive delegation. (2) Control at the stage of the exercise of discretion In India, unlike the USA, there is no Administrative Procedure Act providing for judicial review on the exercise of administrative discretion. Therefore, the power of judicial review arises from the constitutional configuration of courts. Courts in India have always held the view that judge-proof discretion is a negation of the rule of law. Therefore, they have developed various formulations to control the exercise of administrative discretion. These formulations may be conveniently grouped into two broad generalizations: i) That the authority is deemed not to have exercised its discretion at all. ii) That the authority has not exercised its discretion properly. i) That the authority is deemed not to have exercised its discretion at all :- Under this categorization, courts exercise judicial control over administrative discretion if the authority has either abdicated its power or has put fetters on its exercise or the jurisdictional facts are either non-existent or have been wrongly determined. Module – 1 50 Purtabpore Company Ltd. V. Cane Commissioner of Bihar , (AIR 1970 SC is a notable case in point. In this case the Cane Commissioner who had 1896) the power to reserve sugarcane areas for the respective sugar factories, at the dictation of the Chief Minister excluded 99 villages from the area reserved by him in favor of the appellant-company. The court quashed the exercise of discretion by the Cane Commissioner on the ground that the abdicated his power by exercising it at the dictation of some other authority; therefore, it was deemed that the authority had not exercised its discretion at all. Thus the exercise of discretion or in compliance with instructions of some other person amounts to failure to exercise the discretion altogether. It is immaterial that the authority invested with the discretion itself sought the instructions. ii) That the authority has not exercised its discretion properly This is an all-embracing formulation developed by courts in India to control the exercise of discretion by the administrative authority. Improper exercise of discretion includes everything that English courts include in ‘unreasonable’ exercise of discretion and American courts include in ‘arbitrary and capricious’ exercise of discretion. Improper exercise of discretion includes such things as ‘taking irrelevant considerations into account’, ‘acting for improper purpose’, ‘asking wrong questions’, ‘acting in bad faith’, ‘neglecting to take into consideration relevant factors’ or ‘acting unreasonable’. S.R. Venkataraman v. Union of India , the appellant, a (1979 2SCC 491) Central Government officer, was prematurely retired from service in ‘public interest’ under Rule 56(j)(i) on attaining the age of 50 years. Her contention was that the government did not apply its mind to her service record and that in the facts and circumstances of the case the discretion vested under Rule 56(j)(I) was not exercised for furtherance of public interest and that the order was based on extraneous circumstances. The government conceded that there was nothing on record to justify the order. The Supreme Court, quashing the order of the government, held that if a discretionary power has been exercised for an unauthorized purpose, it is generally immaterial whether its repository was acting in good faith or bad faith. An administrative order based on a reason or facts that do not exist must be held to be infected with an abuse of power. R.D. Shetty v. International Airport Authority : It is (1979 3SCC 459) heartening to see the law catching up with the vagaries of the State’s dealings in the ex ercise of its discretion. In this case the issue was the awarding of a contract for running a second-class hotelier's and it was clearly stipulated that the acceptance of the tender would rest with the Airport Director who would not bind himself to accept any tender and reserved to himself the right to reject all or any of the tenders received without assigning any reason. The highest of all. A writ petition was filed by a person who was himself neither a tenderer nor an hotelier was filed by a person who was himself neither a tenderer nor a hotelier. His grievance was that he was in the same position as the successful tenderer because if an essential condition could be ignored in the tenderer’s case why not in the petitioner’s? The Supreme Court accepted Module – 1 51 the plea of locus stand in challenging the administrative action. Justice P.N. Bhagwati, who delivered the judgment of the Court, held: 1) Exercise of discretion is an inseparable part of sound administration and, therefore, the State which is itself a creature of the Constitution, cannot shed its limitation at any time in any sphere of State activity. 2) It is a well-settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. 3) It is indeed unthinkable that in a democracy governed by the rule of law the ex ecutive government or any of its officers should possess arbitrary powers over the interests of an individual. Every action of the ex ecutive government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. 4) The government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licenses only in favor of those having gray hair or belonging to a particular political party or professing a particular religious faith. The government is still the government when it acts in the matter of granting largesse and it cannot act arbitrarily. It does not stand in the same position as a private individual. The exercise of discretion must not be arbitrary, fanciful and influenced by extraneous considerations. In matters of discretion the choice must be dictated by public interest and must not be unprincipled or unreasoned. It has been firmly established that the discretionary powers given to the governmental or quasi-government authorities must be hedged by policy, standards, procedural safeguards or guidelines, failing which the exercise of discretion and its delegation may be quashed by the courts. This principle has been reiterated in many cases. Thus within the area of administrative discretion the courts have tried to fly high the flag of Rule of Law which aims at the progressive diminution of arbitrariness in the ex ercise of public power. In India the administrative discretion, thus, may be reveiwed by the court on the following grounds. I. Abuse of Discretion. Module – 1 52 Now a day, the administrative authorities are conferred wide discretionary powers. There is a great need of their control so that they may mot be misused. The discretionary power is required to be exercised according to law. When the mode of ex ercising a valid power is improper or unreasonable there is an abuse of power. In the following conditions the abuse of the discretionary power is inferred: - i) Use for improper purpose: - The discretionary power is required to be used for the purpose for which it has been given. If it is given for one purpose and used for another purpose. It will amount to abuse of power. ii) Malafide or Bad faith: - If the discretionary power is exercised by the authority with bad faith or dishonest intention, the action is quashed by the court. Malafide exercise of discretionary power is always bad and taken as abuse of discretion. Malafide (bad faith) may be taken to mean dishonest intention or corrupt motive. In relation to the exercise of statutory powers it may be said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently. If its repository intends to achieve an object other than that for which he believes the power to have been conferred. The intention may be to promote another public interest or private interest. iii) Irrelevant consideration: - The decision of the administrative authority is declared void if it is not based on relevant and germane considerations. The considerations will be irrelevant if there is no reasonable connection between the facts and the grounds. iv) Leaving out relevant considerations: - The administrative authority exercising the discretionary power is required to take into account all the relevant facts. If it leaves out relevant consideration, its action will be invalid. v) Mixed consideration: - Sometimes the discretionary power is exercised by the authority on both relevant and irrelevant grounds. In such condition the court will examine whether or not the exclusion of the irrelevant or non-existent considerations would have affected the ultimate decision. If the court is satisfied that the exclusion of the irrelevant considerations would have affected the decision, the order passed by the authority in the exercise of the discretionary power will be declared invalid but if the court is satisfied that the exclusion of the irrelevant considerations would not be declared invalid. vi) Unreasonableness: - The Discretionary power is required to be exercised by the authority reasonably. If it is exercised unreasonably it will be declared invalid by the court. Every Module – 1 53 authority is required to exercise its powers reasonably. In a case Lord Wrenbury has observed that a person in whom invested a discretion must exercise his discretion upon reasonable grounds. Where a person is conferred discretionary power it should not be taken to mean that he has been empowered to do what he likes merely because he is minded to do so. He is required to do what he ought and the discretion does not empower him to do what he likes. He is required, by use of his reason, to ascertain and follow the course which reason directs. He is required to act reasonably vii) Colourable Exercise of Power: - Where the discretionary power is exercised by the authority on which it has been conferred ostensibly for the purpose for which it has been given but in reality for some other purpose, It is taken as colourable exercise of the discretionary power and it is declared invalid. viii) Non-compliance with procedural requirements and principles of natural justice: - If the procedural requirement laid down in the statute is mandatory and it is not complied, the exercise of power will be bad. Whether the procedural requirement is mandatory or directory is decided by the court. Principles of natural justice are also required to be observed. ix) Exceeding jurisdiction: - The authority is required to exercise the power with in the limits or the statute. Consequently, if the authority exceeds this limit, its action will be held to be ultra vires and, therefore, void. II. Failure to exercise Discretion. In the following condition the authority is taken to have failed to exercise its discretion and its decision or action will be bad. i) Non-application of mind: - Where an authority is given discretionary powers it is required to exercise it by applying its mind to the facts and circumstances of the case in hand. If he does not do so it will be deemed to have failed to exercise its discretion and its action or decision will be bad. ii) Acting under Dictation: - Where the authority exercises its discretionary power under the instructions or dictation from superior authority. It is taken, as non-exercise of power by the authority and its decision or action is bad. In such condition the authority purports to act on its won but in substance the power is not exercised by it but by the other authority. The authority entrusted with the powers does not take action on its own judgement and does not apply its mind. For example in Commissioner of Police v. Gordhandas the Police Module – 1 54 Commissioner empowered to grant license for construction of cinema theatres granted the license but later cancelled it on the discretion of the Government. The cancellation order was declared bad as the Police Commissioner did not apply his mind and acted under the dictation of the Government. III) Imposing fetters on the exercise of discretionary powers: - If the authority imposes fetters on its discretion by announcing rules of policy to be applied by it rigidly to all cases coming before it for decision, its action or decision will be bad. The authority entrusted with the discretionary power is required to exercise it after considering the individual cases and if the authority imposes fetters on its discretion by adopting fixed rule of policy to be applied rigidly to all cases coming before it, it will be taken as failure to exercise discretion and its action or decision or order will be bad. Administrative Discretion and fundamental rights No law can clothe administrative discretion with a complete finality, for the courts always examine the ambit and even the mode of its exercise for the angle of its conformity with fundamental rights. The fundamental rights thus provide a basis to the judiciary in India to control administrative discretion to a large extent. There have been a number of cases in which a law, conferring discretionary powers, has been held violative of a fundamental right. The following discussion will illustrate the cases of judicial restraints on the exercise of discretion in India. Administrative Discretion and Article 14. Article14 prevents arbitrary discretion being vested in the executive. Equality is antithetic to arbitrariness. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. Right to equality affords protection not only against discretionary laws passed by legislature but also prevents arbitrary discretion being vested in the executive. Often executive or administrative officer or Government is given wide discretionary power. In a number of cases, the Statute has been challenged on the ground that it conferred on an administrative authority wide discretionary powers of selecting persons or objects discriminately and therefore, it violated Article 14. The Court in determining the question of validity of such statute will examine whether the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of selection or classification. The Court will not tolerate the delegation of uncontrolled power in the hands of the Executive to such an extent as to enable it to discriminate. In State of West Bengal v. Anwar Ali, . It was held that in so far AIR 1952 SC 75 as the Act empowered the Government to have cases or class of offences tried by special courts, it violated Article 14 of the Constitution. The court further held the Act invalid as it laid down “no yardstick or measure for the grouping Module – 1 55 either of persons or of cases or of offences” so as to distinguish them from others outside the purview of the Act. Moreover, 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. Under Article 19 Article 19 guarantees certain freedoms to the citizens of India, but they are not absolute. Reasonable restrictions can be imposed on these freedoms under the authority of law. They cannot be contended merely on executive action. The reasonableness of the restrictions is open to judicial review. These freedoms can also be afflicted by administrative discretion. Such cases can be examined below. A number of cases have come up involving the question of validity of law conferring discretion on the Executive to restrict the right under Article 19(1)(b) and (e). The State has conferred powers on the Executive to extern a person from a particular area in the interest of peace and safety in a number of statutes. In Dr. Ram Manohar v. State of Delhi, ., where the AIR 1950 SC 211 D.M. was empowered under East Punjab Safety Act, 1949, to make an order of externment from an area in case he was satisfied that such an order was necessary to prevent a person from acting in any way prejudicial to public peace and order, the Supreme Court upheld the law conferring such discretion on the execution on the grounds, inter alia, that the law in the instant case was of temporary nature and it gave a right to the externee to receive the grounds of his externment from the Executive. In Hari v. Deputy Commissioner of Police , , the Supreme AIR 1956 SC 559 Court upheld the validity of section 57 of the Bombay Police Act authorizing any of the officers specified therein to extern convicted persons from the area of his jurisdiction if he had reasons to believe that they are likely to commit any offence similar to that of which they were convicted. This provisions of law, which apparently appears to be a violation of he residence was upheld by court mainly on the considerations that certain safeguards are available to the externee, i.e., the right of hearing and the right to file an appeal to the State Government against the order. In a large number of cases, the question as to how much discretion can be conferred on the Executive to control and regulate trade and business has been raised. The general principle laid down in that the power conferred on the Executive should not be arbitrary, 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.” “Any law or order which confers arbitrary and uncontrolled power upon the Executive in the matter of the regulating trade or business is normally available in commodities control cannot but be held to be unreasonable.” and no provisions to ensure a proper execution of the power and to operate as a check against injustice resulting from its improper exercise. The Supreme Court in H.R. Banthis v. Union of India ( 1979 1 SCC 166) declared a licensing provision invalid as it conferred an uncontrolled and Module – 1 56 unguided power on the Executive. The Gold (Control) Act, 1968, provided for licensing of dealers in gold ornaments. The Administrator was empowered under the Act to grant or renew licenses having regard to the matters, inter alia, the number of dealers existing in a region, anticipated demand, suitability of the applicant and public interest. The Supreme Court held that all these factors were vague and unintelligible. The term ‘region’ was nowhere defined in the Act. The expression ‘anticipated demand was vague one. The expression ‘suitability of the applicant and ‘public interest’ did not contain any objective standards or norms. Where the Act provides some general principles to guide the exercise of the discretion and thus saves it from being arbitrary and unbridled, the court will uphold it, but where the Executive has been granted ‘unfettered power to interfere with the freedom of property or trade and business, the court will strike down such provision of law. Under Article 31(2): Article 31(2) of the Constitution provided for acquisition of private property by the Government under the authority of law. It laid down two conditions, subject to which the property could be requisitioned 1) that the law provided for an amount (after 25 th Amendment) to be given to the persons affected, which was non-justiciable; and (2) that the property was to be acquired for a public purpose. In an early case, where the law vested the administrative officer with the power to acquire estates of food grains at any price, it was held to be void on the grounds, inter alia, that it failed to fix the amount of compensation or specify the principles, on which it could be determined. Since the matter was entirely left to the discretion of the officer concerned to fix any compensation it liked, it violated Article 31(2). The property under Article 31(2) could be acquisitioned for a public purpose only. The Executive could be made the sole judge to decide a public purpose. No doubt, the Government is in best position to judge as to whether a public purpose could be achieved by issuing an acquisition order, but it is a justiciable issue and the final decision is with the courts in this matter. In West Bengal Settlement Kanungo Co-operative Credit Society Ltd. V. Bela Bannerjee ) the provision that a Government’s declaration ,(AIR 1954 SC 170 as to its necessity to acquire certain land for public purpose shall be conclusive evidence thereof was held to be void. The Supreme Court observed that as Article 31(2) made the ex istence of a public purpose a necessary condition of acquisition, it is, therefore, necessary that the existence of such a purpose as a fact must be established objectively and the provision relating to the conclusiveness of the declaration of then Government as to the nature of the purpose of the acquisition must be held unconstitutional. The Courts have, however, attempted to construe the term public purpose rather broadly; the judicial test adopted for the purpose being that whatever furthers the general interests of the community as opposed to the particular interests of the individual is a public purpose. The general tendency of the Module – 1 57 Legislature is to confer the power of acquisition on the Executive in an undefined way by using vague expressions such as “purposes of the State” or “purposes of the Union”, so as to give wider latitude to the courts to uphold it. Thus, we have seen in the above illustrations how the courts have used the mechanism of fundamental rights to control the administrative discretion. In fact fundamental rights are very potential instruments by which the Judiciary in India can go a long way in warding off the dangers of administrative discretion. Judicial Control of Administrative discretion – The broad principles on which the exercise of discretionary powers can be controlled, have now been judicially settled. These principles can be examined under two main heads: a) where the exercise of the discretion is in excess of the authority, i.e., ultra vires; b) where there is abuse of the discretion or improper exercise of the discretion. These two categories, however, are not mutually exclusive. In one sense the exercise of the discretion may be ultra vires, in other sense the same might have been exercised on irrelevant considerations. As regards the ultra vires exercise of administrative discretion, the following incidents are pre-eminent: - 1) where an authority to whom discretion is committed does not exercise that discretion himself; 2) where the authority concerned acts under the dictation of another body and disables itself from exercising a discretion in each individual case; 3) where the authority concerned in ex ercise of the discretion, does something which it has been forbidden to do, or does an act which it has been authorized to do; 4) where the condition precedent to the exercise of its discretion is non- existent, in which case the authority lacks the jurisdiction to act as all. Under the second category, i.e., abuse of discretionary power, the following instances may be considered: - 1) where the discretionary power has been exercised arbitrarily or capriciously; 2) where the discretionary power is exercised for an improper purpose, i.e., for a purpose other than the purpose of carrying into effect in the best way the provisions of the Act; Module – 1 58 3) where the discretionary power is exercised inconsistent with the spirit and purpose of the statute; 4) where the authority exercising the discretion acts on extraneous considerations, that is to say, takes into account any matters which should not have been taken into account; 5) where the authority concerned refuses or neglects to take into account relevant matter or material considerations; 6) where the authority imposes a condition patently unrelated to or inconsistent with the purpose or policy of the expectation statute; 7) where in the exercise of the discretionary power, it acts mala fide; 8) where the authority concerned acts unreasonably. Legitimate expectation as ground of judicial review Besides the above grounds on which the exercise of discretionary powers can be examined, a third major basis of judicial review of administrative action is legitimate expectation, which is developing sharply in recent times. The concept of legitimate expectation in administrative law has now, undoubtedly, gained sufficient importance. It is stated that the legitimate expectation is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action and this creation takes its place besides such principles as the rules of natural justice, unreasonableness, the fiduciary duty of local authorities and in future, perhaps, the unreasonableness, the proportionality. In Union of India v. Hindustan Development Corporations , ( ) 1993 3SCC 499 the court held that it only operates in public law field and provides locus standi for judicial review. Its denial is a ground for challenging the decision but denial can be justified by showing some overriding public interest. In the instant case, question arose regarding the validity of the dual policy of the government in the matter of contracts with private parties for supply of goods. There was no fixed procedure for fixation of price and allotment of quality to be supplied by the big and small suppliers. The government adopted a dual price policy, lower price for big suppliers and higher price for small suppliers in public interest and allotment of quantity by suitably adjusting the same so as to break the cartel. The court held that this does not involve denial of any legitimate expectation. The court observed: legitimate ex pectations may come in various forms and owe their ex istence to different kind of circumstances and it is not possible to give an exhaustive list in the context of vast and fast expansion of governmental activities. By and large they arise in cases of promotions, which are in normal course expected, though not guaranteed by way of statutory right, in cases of contracts, distribution of largess by the Government and in somewhat similar situations. Legitimate expectation gives the applicant sufficient locus standi for judicial review. The doctrine of legitimate expectation is to be confined mostly to right Module – 1 59 of fair hearing before a decision, which results in negativing a promise, or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallized right as such is involved. The protection of such legitimate does not require the fulfillment of the expectation where an overriding public interest requires otherwise. A case of legitimate expectation would arise when a body by representation or by past practice aroused ex pectation, which it would be within its powers to fulfill. The protection is limited to that extent and a judicial review can be within those limits. A person, who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is foundation and thus he has locus standi to make such a claim. There are stronger reasons as to why the legitimate expectation should not be substantively protected than the reason as to why it should be protected. If a denial of legitimate ex pectation in a given case amounts to denial of right guaranteed or arbitrary, discriminatory unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well known grounds attracting Article 14 but a claim based on mere legitimate expectation without any thing more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is “ not the key which unlocks the treasury of natural justice and it ought not to unlock the gate which shuts, the court out of review on the merits”, particularly when the element of speculation and uncertainly is inherent in that very concept. The courts should restrain themselves and restrict such claims duly to the legal limitations. Further in Food Corporation of India v. M/s. Kamdhenu Cattle Seed Industries . The doctrine of legitimate expectation gets AIR 1993 SC 1601 assimilated in the rule of law and operates in our legal system in this manner and this extent. The Court observed: “The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process.” In Lala Sachinder Kumar v. Patna Regional Development Authority, ( AIR ) the court again applied the doctrine of legitimate expectation 1994 PATNA 128 and held the order of allotment of residential plots issued by the Patna Module – 1 60 Regional Development Authority as bad. In the instant case Regional Development Authority issued an advertisement inviting applications for the allotment of residential plots. In this process preference was given to the employees of the Patna Regional Development Authority with out considering the case of applicant petitioner, whereas Rules did not provide for any such preferential allotment. The court held that allotment in favour of employees is arbitrary. The applicant petitioner has legitimate expectations to be considered for allotment. ADMINISTRATIVE ADJUDICATION AND ADMINISTRATIVE TRIBUNALS T here are a large number of laws which charge the Executive with adjudicatory functions, and the authorities so charged are, in the strict scene, administrative tribunals. Administrative tribunals are agencies created by specific enactments. Administrative adjudication is term synonymously used with administrative decision- making. The decision-making or adjudicatory function is exercised in a variety of ways. However, the most popular mode of adjudication is through tribunals. The main characteristics of Administrative Tribunals are as follows: • = Administrative Tribunals is the creation of a statute. • = An Administrative Tribunals is vested in the judicial power of the State and thereby performance quasi-judicial functions as distinguished form pure administrative functions. • = Administrative Tribunals is bound to act judicially and follow the principles of natural justice. • = It has some of the trapping of a court and are required to act openly, fairly and impartially. • = An administrative Tribunal is not bound by the strict rules of procedure and evidence prescribed by the civil procedure court. Let us now study the evolution of the Administrative Tribunals with special reference to Central Administrative Tribunal, State and Joint Administrative Tribunals, their jurisdiction, powers and authority. The composition of the Tribunal and its functioning will also be dealt with. ADMINISTRATIVE TRIBUNALS – EVOLUTION Module – 1 61 The growth of Administrative Tribunals both in developed and developing countries has been a significant phenomenon of the twentieth century. In India also, innumerable Tribunals have been set up from time to time both at the center and the states, covering various areas of activities like trade, industry, banking, tax ation etc. The question of establishment of Administrative Tribunals to provide speedy and inexpensive relief to the government employees relating to grievances on recruitment and other conditions of service had been under the consideration of Government of India for a long time. Due to their heavy preoccupation, long pending and backlog of cases, costs involved and time factors, Judicial Courts could not offer the much- needed remedy to the government servants, in their disputes with the government. The dissatisfaction among the employees, irrespective of the class, category or group to which they belong, is the direct result of delay in their long pending cases or cases not attended properly. Hence, a need arose to set up an institution, which would, help in dispensing prompt relief to harassed employees who perceive a sense of injustice and lack of fair play in dealing with their service grievances. This would motivate the employees better and raise their morale, which in turn would increase their productivity. The Administrative Reforms Commission (1966-70) recommended the setting up of Civil Service Tribunals to function as the final appellate authority, in respect of government orders inflicting major penalties of dismissal, removal from service and reduction in rank. As early as 1969, a Committee under the chairmanship of J.C. Shah had recommended that having regard to the very number of pending writ petitions of the employees in regard to the service matters, an independent Tribunal should be set up to exclusively deal with the service matters. The Supreme Court in 1980, while disposing of a batch of writ petitions observed that the public servants ought not to be driven to or forced to dissipate their time and energy in the courtroom battles. The Civil Service Tribunals should be constituted which should be the final arbiter in resolving the controversies relating to conditions of service. The government also suggested that public servants might approach fact- finding Administrative Tribunals in the first instance in the interest of successful administration. The matter came up for discussion in other forums also and a consensus emerged that setting up of Civil Service Tribunals would be desirable and necessary, in public interest, to adjudicate the complaints and grievances of the government employees. The Constitution (through 42 amendment Article 323-A). nd This Act empowered the Parliament to provide for adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and constitutions of service of persons appointed to public service and posts in connection with the affairs of the union or of any state or local or other authority within the territory of India or under the control of the government or any corporation owned or controlled by the government. In pursuance of the provisions of Article 323-A of the Constitution, the Administrative Tribunals Bill was introduced in Lok Sabha on 29 January 1985 and th received the assent of the President of India on 27 February 1985. th Module – 1 62 STRUCTURE OF THE TRIBUNALS The Administrative Tribunals Act 1985 provides for the establishment of one Central Administrative Tribunal and a State Administrative Tribunal for each State like Haryana Administrative Tribunal etc; and Joint Administrative Tribunal for two or more states. The Central Administrative Tribunal with its principal bench at Delhi and other benches at Allahabad, Bombay, Calcutta and Madras was established on Ist November 1985. The Act vested the Central Administrative Tribunal with jurisdiction, powers and authority of the adjudication of disputes and complaints with respect to recruitment and service matters pertaining to the members of the all India Services and also any other civil service of the Union or holding a civil post under the Union or a post connected with defense or in the defense services being a post filled by a civilian. Six more benches of the Tribunal were set up by June, 1986 at Ahmedabad, Hyderabad, Jodhpur, Patna, Cuttack, and Jabalpur. The fifteenth bench was set up in 1988 at Ernakulam. The Act provides for setting up of State Administrative Tribunals to decide the services cases of state government employees. There is a provision for setting up of Joint Administrative Tribunal for two or more states. On receipt of specific requests from the Government of Orissa, Himachal Pradesh, Karnataka, Madhaya Pradesh and Tamil Naidu, Administrative Tribunals have been set up, to look into the service matters of concerned state government employees. A joint Tribunal is also to be set up for the state of Arunachal Pradesh to function jointly with Guwahati bench of the Central Administrative Tribunal. COMPOSITION OF THE TRIBUNALS Each Tribunal shall consist of Chairman, such number of Vice-Chairman and judicial and administrative members as the appropriate Government (either the Central Government or any particular State Government singly or jointly) may deem fit (vide Sec. 5.(1) Act No. 13 of 1985). A bench shall consist of one judicial member and one administrative member. The bench at New Delhi was designated the Principal Bench of the Central Administrative Tribunal and for the State Administrative Tribunals. The places where their principal and other benches would sit specified by the State Government by Notification (vide Section 5(7) and 5(8) of the Act). QUALIFICATION FOR APPOINTME NT In order to be appointed as Chairman or Vice-Chairman, one has to be qualified to be (is or has been) a judge of a High Court or has held the post of secretary to the Government of India for at least two years or an equivalent-pay-post either under the Central or State Government (vide Sec. 6(i) and (ii) Act No. 13 of 1985). To be a judicial member, one has to be qualified for appointment as an administrative member, one should have held at least for two years the post of Additional Secretary to the Government of India or an equivalent pay-post under Central or State Government or has held for at least three years a post of Joint Secretary to the Govt. Of India or equivalent post under Central or State Government and must possess adequate administrative ex perience. Module – 1 63 APPOINTMENTS The C hairman, Vice-Chairman and every other members of a Central Administrative Tribunal shall be appointed by the President and, in the case of State or joint Administrative Tribunal(s) by the President after consultation with the Governor(s) of the concerned State(s), (vide Section 6(4), (5) and (6), Act No. 13 of 1985). But no appointment can be made of a Chairman, vice-chairman or a judicial member except after consultation with the Chief Justice of India. If there is a vacancy in the office of the Chairman by reason of his resignation, death or otherwise, or when he is unable to discharge his duties / functions owing to absence, illness or by any other cause, the Vice-Chairman shall act and discharge the functions of the Chairman, until the Chairman enters upon his office or resumes his duties. TERMS OF OFFICE The Chairman, Vice-Chairman or other member shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of a) Sixty five, in the case of Chairman or vice-Chairman, b) Sixty-two, in the case of any other member, whichever is earlier. RESIGNATION OR REMOVAL The Chairman, Vice-Chairman or any other member of the Administrative Tribunal may, by notice in writing under his hand addressed to the President, resign, his office; but will continue to hold office until the expiry of three months from the date of receipt of notice or expiry of his terms of office or the date of joining by his successor, whichever is the earliest. They cannot be removed from office except by an order made by the President on the ground of proven misbehavior or incapacity after an inquiry has been made by a judge of the Supreme Court; after giving them a reasonable opportunity of being heard in respect of those charges (vide Sec. 9(2). Act No. 13 of 1985). ELIGIBILITY FOR FURTHER EMPLOYMENT The Chairman of the Central Administrative Tribunal shall be ineligible for further employment under either Central or State government, but Vice-Chairman of the Central Tribunal will be eligible to be the Chairman of that or any other State Tribunal or Vice-Chairman of any State or Joint Tribunal(s). The Chairman of a State or Joint Tribunal(s) will, however, be eligible for appointment as Chairman of any other State or Joint Tribunals. The Vice-Chairman of the State or Joint Tribunal can be the Chairman of the State Tribunal or Chairman, Vice-Chairman of the Central Tribunal or any other State or Joint Tribunal. A member of any Tribunal shall be eligible for appointment as the Chairman or Vice- Module – 1 64 Chairman of such Tribunal or Chairman, Vice-Chairman or other member of any other Tribunal. Other than the appointments mentioned above the Vice-Chairman or member of a Central or State Tribunal, and also the Chairman of a State Tribunal, cannot be made eligible for any other employment either under the Government of India or under the Government of a State. JURISDICTION, POWERS AND AUTHORITY Chapter III of the Administrative Tribunal Act deals with the jurisdiction, powers and authority of the tribunals. Section 14(1) of the Act vests the Central Administrative Tribunal to exercise all the jurisdiction, powers and authority exercisable by all the courts except the Supreme Court of India under Article 136 of the Constitution. One of the main features of the Indian Constitution is judicial review. There is a hierarchy of courts for the enforcement of legal and constitutional rights. One can appeal against the decision of one court to another, like from District Court to the High Court and then finally to the Supreme Court, But there is no such hierarchy of Administrative Tribunals and regarding adjudication of service matters, one would have a remedy only before one of the Tribunals. This is in contrast to the French system of administrative courts, where there is a hierarchy of administrative courts and one can appeal from one administrative court to another. But in India, with regard to decisions of the Tribunals, one cannot appeal to an Appellate Tribunal. Though Supreme Court under Article 136, has jurisdiction over the decisions of the Tribunals, as a matter of right, no person can appeal to the Supreme Court. It is discretionary with the Supreme Court to grant or not to grant special leave to appeal. The Administrative Tribunals have the authority to issue writs. In disposing of the cases, the Tribunal observes the canons, principles and norms of ‘natural justice’. The Act provides that “a Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure 1908, but shall be guided by the principles of natural justice. The Tribunal shall have power to regulate its own procedure including the fixing of the place and times of its enquiry and deciding whether to sit in public of private”. A Tribunal has the same jurisdiction, powers and authority, as those exercised by the High Court, in respect of “Contempt of itself” that is, punish for contempt, and for the purpose, the provisions of the contempt of Courts Act 1971 have been made applicable. This helps the Tribunals in ensuring that they are taken seriously and their orders are not ignored. PROCEDURE FOR APPLICATION TO THE TRIBUNALS Chapter IV of the Administrative Tribunals Act prescribes for application to the Tribunal. A person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal may make an application to it for redressal of grievance. Such applications should be in the prescribed form and have to be accompanied by relevant documents and evidence and by such fee as may be prescribed by the Central Government but not exceeding one hundred rupees for filing the application. The Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant has availed of all remedies available to him under the relevant service rules. This includes the making of any administrative appeal or representation. Since consideration of such appeals and representations involve delay, the applicant can make an application before the Tribunal, if a period of six months has expired after Module – 1 65 the representation was made no order has been made. But an application to the Tribunal has to be made within one year from the date of final order or rejection of the application or appeal or where no final order of rejection has been made, within one year from the date of expiry of six months period. The Tribunal. May, however admit any application even after one year, if the applicant can satisfy the Tribunal that he/she had sufficient cause for not making the application within the normal stipulated time. Every application is decided by the Tribunal or examination of documents, written representation and at a times depending on the case, on hearing of oral arguments. The applicant may either appear in person or through a legal practitioner who will present the case before the Tribunal. The orders of the Tribunal are binding on both the parties and should be complied within the time prescribed in the order or within six months of the receipt of the order where no time limit has been indicated in the order. The parties can approach the Supreme Court against the orders of the Tribunal by way of appeal under Article 136 of the Constitution. The Administrative Tribunals are not bound by the procedure laid down in the code of Civil Procedure 1908. They are guided by the principles of natural justice. Since these principles are flexible, adjustable according to the situation, they help the Tribunals in molding their procedure keeping in view the circumstances of a situation. ADVANTAGES OF THE T RIBUNAL: • = Appropriate and effective justice. • = Flexibility • = Speedy • = Less expensive Limitations of the Tribunals: • = The tribunal consists of members and heads that may not possess any background of law . • = Tribunals do not rely on uniform precedence and hence may lead to arbitrary and inconsistent decision. Natural Justice Meaning and Development T he concept of natural justice is the backbone of law and justice. In the quest for justice the principles of natural justice have been utilized since the dawn of civilization. Principles of natural justice trace their ancestry to ancient civilization and centuries long past. Initially natural justice was conceived as a concomitant of universal natural law. Judges have Module – 1 66 used natural justice as to imply the existence of moral principles of self evident and unarguable truth. To justify the adoption, or continued existence, of a rule of law on the ground of its conformity to natural justice in this sense conceals the extent to which a judge is making a subjective moral judgment and suggests on the contrary, an objective inevitability. Natural Justice used in this way is another name for natural law although devoid of at least some of the theological and philosophical overtones and implications of that concept. This essential similarity is clearly demonstrated by Lord Esher M.R’s definition of natural justice as, “ the natural sense of what right and wrong.” 1 ( Voinet v Barrett, (1885) 55, L.J. Q. B, 39, 41). Most of the thinkers of fifteenth to eighteenth century considered natural law and justice as consisting of universal rules based on reason and thus were immutable and inviolable. The history of natural law is a tale of the search of mankind for absolute justice and its failure. Again and again in the course of the last 2500 years the idea of natural law has appeared in some form or the other, as an expression for the search for an ideal higher than positive law. t h (W.G. Friedman, Legal Theory 95. 5 ed. 1967). Greek thinkers laid the basis for natural law. The Greek philosophers traditionally regarded law as closely to both justice and ethics. Roman society was highly developed commercial society and Natural law played a creative and constructive role, thereby jus civil , was adopted to meet new demands. Similarly in the middle Ages, the Christian legal philosophy, considered natural law founded on reasons and a reflection of eternal laws. In the seventeenth and eighteenth century, the authority of church was challenged and natural law was based on reason and not divine force. The use of natural law ideas in the development of English law revolves around two problems: the idea of the supremacy of law, and, in particular, the struggle between common law judges and parliament for legislative supremacy on one hand, and the introduction of equitable considerations of “Justice between man and man” on the other. The first ended in a clear victory for parliamentary supremacy and the defeat of higher law ideas; the latter, after a long period of comparative stagnation, is again a factor of considerable influence in the development of the law. A number of cases are evidenced with the beginning of seventeenth century wherein a statute was declared void and not binding for not being inconformity with the principles of Natural Justice. The concept of natural justice can be traced from Biblical Garden of Eden, as also from Greek, Roman and other ancient cultures like Hindu. The Vedic Indians too were familiar with the natural theory of law. The practice of confining the expression natural justice to the procedural principles (that no Module – 1 67 one shall be judge in his own case and both sides must heard) is of comparatively recent origin and it was always present in one way or the other form. The expression was used in the past interchangeably with the expressions Natural Law, Natural enquiry, the laws of God, Sampan jus and other similar expressions. (H.H. Marshall, Natural Justice 5 (1959) London) Thus, the widespread recognition, in many civilizations and over centuries the principle of natural justice belong rather to the common consciousness of the mankind than to juridical science. CONCEPTUAL FORMULATION comprehensive definition of natural justice is yet to be evolved. However, it A is possible to enumerate with some certainty the main principles constituting natural justice in modern times. English and Indian courts have frequently resorted to such alternatives to natural justice as “fair play in action”, (Ridge V. Baldwin, (1963) 2 all E.R. 66; Wisemen V. Borneman (1969), 3 all E.R. 215; Mohinder Singh Gill V. Common fairness, Chief Election Commissioner, A. I. R 1978 S.C. 851.) (R.V. Secretary of State or the fundamental for the Home Department, exp. Hose ball, (1977) 1 W.L..R 766, 784). principles of a fair trail. (Tameshwar V The Queen, (1957) A. C. 476-486; Maneka Gandhi V Union of India A. I. R 1978 S.C 597). In Spackman’s case, (Spackman V. Plumstead District Board of Works, (1885) 10 App case Earl of Selborne, L.C observed that no doubt in the absence of 229, 240). special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not the judge in the proper sense of the word but he must give the parties an opportunity of being heard before him and stating their case and their view. There would be no decision within the meaning of the statute, if there were anything of that sort done contrary to essence of justice. Emphasizing for observance of natural justice again is Lesson’s case, (Lesson Brown C.J using the term V. General Council of Medical Education (1889) US Ch. D 366, 383. ‘natural justice’ stressed that the statute imparts that substantial element of natural justice must be found to have been present at the enquiry. The accused person must have notice of what he is accused and must be given an opportunity of being heard. The courts took these procedural safeguards in the past among different words. Conveying meaning i.e. the eternal justice or natural justice. The list of the words is long which were as : Substantial justice; The essence of justice; Fundamental justice; Universal justice and Rational justice etc. Module – 1 68 So the term natural justice has very impressive ancestry and has been retained all over the world with some modifications. The very basic thing, which emerges from it, is . Fairness in the administration of justice , more than any other legal principle is not susceptible to concise definition. It has a different meaning in different countries. History and tradition shape and distort it. To judge these divergent procedures according to a common standard of fairness is therefore no easy matter. What fair means will surely irritate governments and plague jurists. Fair hearing, some say it constitutes as fifth freedom supplementing freedom of speech and religion, freedom from want and fear. Robert Jackson, J., remains us that procedural fairness and regularity are of indispensable essence of liberty. The concept of natural justice is not fixed one but has been changing from time, keeping its spirit against tyranny and injustice. Despite the many appellations applied to it and the various meanings attributed to it, through the ages, one thing remains constant. It is by its very nature a barrier against dictatorial power and therefore has been and still is an attribute of an civilized community that aspires to preserve democratic freedom. ( Rene Dussault, “Judicial The concept of natural Review of Administrative Action in Quebec,” Can Bar Rev. 79 (1967). justice is flexible and has been interpreted in many ways to serve the ends of justice. Thus the doctrine of natural justice is the result of a natural evolution. So let us try to find out what does natural justice mean? • = Natural Justice is rooted in the natural sense of what is right and wrong. It mandates the Adjudicator or the administrator, as the case may be, to observe procedural fairness and propriety in holding/conducting trail, inquiry or investigation or other types of proceedings or process. • = The object of Natural Justice is to secure Justice by ensuring procedural fairness. To put it negatively, it is to prevent miscarriage of Justice. • = • = The term “ Natural Justice ” may be equated with “procedural fairness” or “fair play in action”. • = It is concerned with procedure and it seeks to ensure that the procedure is just, fair and reasonable. • = It may be regarded as counterpart of the American “ Due Process”. Co-relationship between Law and Natural Justice. Module – 1 69 (a) Law is the means, Justice is the end. Law may be substantive as well as procedural. (b) Natural Justice also aims at Justice. It, however, concerns itself only with the procedure. It seeks to secure justice by ensuring procedural fairness. It creates conditions for doing justice. (c) Natural justice humanizes the Law and invests the Law with fairness. (d) Natural Justice supplements the Law but can supplant the Law. (e) Natural Justice operates in areas not specifically covered by the enacted law. An omission in statute, likely to deprive a procedure of fairness, may be supplied by reading into the relevant provision the appropriate principle of Natural Justice. Applicability of the principles of Natural Justice To Judicial, quasi-judicial and administrative proceedings. The natural justice principles in India are transmigration of common law to the sub-continent during the British rule. Before the commencement of constitution the courts in India insisted on fair hearing where punishments were awarded under the statutory provisions and they demanded fair hearing, even in statutory requirements. But the decision of the Privy Council in the Shanker Sarup’s (28 1.A 203 P.C) case, held an order of distribution under Section 295 CPC to be in the nature of administrative Act, though right of the individual was affected. Similar other cases dealing with the orders of the administrative officer were held administrative in character. Such decisions subjected the working of the common law principle of hearing and this tendency continued to shape the Indian law. The principle established in the above cases clearly shows that the principles of natural justice were confined to judicial proceedings. So Indian courts clung to the traditional distinction between judicial, quasi- judicial and administrative functions. The application of natural justice was for considerable time confined to the judicial and quasi-judicial proceedings. The meaning and connotations of term quasi-judicial has engaged judicial attention repeatedly to determine questions affecting the rights of subjects and having the duty to act judicially is said to be exercising a quasi-judicial functions. The decision of the House of Lords in Ridge’s case and subsequent cases has influenced most of the development of law in this respect in India. The influence of Ridge’s case judgment has been of considerable and valuable importance “in deciding the scope of the application of principles of natural justice.” Module – 1 70 In state of Bina Pani’s case (AIR 1967 S.C. 1259) the Supreme Court has tried to abandon the traditional view of first holding an act judicial and then to observe the principles of natural justice and stated: “ It is true that the order is administrative in Character but even an administrative order must be made consistently with the rules of natural justice.” The dichotomy between administrative and quasi-judicial proceedings vis-à-vis the doctrine of natural justice was finally discarded as unsound by the court in Re-H (K) (infant) and Schmidt cases in England. This development in the law had its parallel in India in the form of Associated Cement Companies Ltd.’s case, where in the Supreme Court with approval referred to the decision in Ridge’s case and latter in the Bina Pani’s case. The decision of Supreme Court in A.K.Kripak’s case (AIR 1973 S.C. 150) is landmark in the application of principles of natural justice. In the instant case court held: “ the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated.” The observations of Hegde,J are remarkable. The learned judge after examining various English and Indian cases has tried to remove all the clouds of doubt relating to application of natural justice. To his Lordship, the concept of rule of law would loose its vitality if the instrumentalities of the state are not charged with the duty of discharging their functions in a fair and just manner. In D.F.O South Kheri’s case, ( AIR 1973 S.C. 203) the court reiterated that law must now be taken to be settled, that even in administrative proceedings, which involve civil consequences, the doctrine of natural justice must be held to be applicable. In order to put the controversy at rest Bhagwati,J. in Maneka’s case emphasized that enquiries which were considered administrative at one time are now considered quasi-judicial in character. Arriving at a just decision is the aim of both administrative and quasi-judicial enquiries. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. From the above discussion, so hear the other side is a rule of fairness. Fairness is a component of rule of law, which pervades the constitution. The dispensation of natural justice by statute will render any decision without observance of natural justice as unjust and hence is not acceptable. The Two Fundamental Principles of Natural Justice. Module – 1 71 There are two fundamental principles of Natural Justice. They are: (i) Nemo Judex in Causa Sua: (a) Rule against bias . (b) None should be a Judge in his own cause (ii) Audi Alter am Par tem (a) Hear the other side. (b) Hear both sides. (c) No person should be condemned unheard. Doctrine of Bias. One of the essential elements of judicial process is that administrative authority acting in a quasi- judicial manner should be impartial, fair and free from bias. Rules of judicial conduct, since early times, have laid down that the deciding Officer should be free from any prejudices. Where a person, who discharges a quasi-judicial function, has, by his conduct, shown that he is interested, or appears to be interested, that will disentitle him from acting in that capacity. In this connection the Supreme Court pointed out that one of the fundamental principles of natural justice is that in case of quasi-judicial proceedings, the authority, empowered to decide the dispute between opposing parties must be one without bias, by which is meant an operative prejudice, whether conscious or unconscious towards one side or the other in the dispute. (Wade, Administrative Law, Page 311, (1982) de Smith. Judicial Review of Administrative Action 151 (1980)). No tribunal can be Judge in his own cause and any person, who sits in judgment over the rights of others, should be free from any kind of bias and must be able to bear an impartial and objective mind to the question in controversy. Bias and Mala fide . In case of mala fide, Courts insist on proof of mala fide while as in case of bias, proof of actual bias is not necessary. What is necessary is that there was “real likelihood” of bias and the test is that of a reasonable man. “ The reason underlying this rule”, according to prof. M.P. Jain, is that bias being a mental condition there are serious difficulties in the path of proving on a balance of probabilities that a person required to act judicially was in fact biased. Bias is the result of an attitude of mind leading to a predisposition towards an issue. Bias may arise unconsciously. It is not necessary to prove existence of bias in fact, what is necessary is to apply the test what will reasonable person think about the matter? Module – 1 72 Further, justice should not only be done but seem to be done. Therefore, the existence of actual bias is irrelevant. What is relevant is the impression which a reasonable man has of the administration of justice.” (See M.P. Jain ‘ Evolving Indian administrative Law’, p. 78.) Rule of bias is only a principle of judicial conduct and is imposed strictly on the exercise of the judicial or quasi- judicial authorities. In the matters of sole discretion of the authority or in the matters depending upon the subjective satisfaction of the authority concerned, the Court will not issue any order on the ground of bias for quashing it. The search for mala fide intention and scrutinizing the honest intention of the administrative authorities have always been subject-matter of judicial review by the English Courts. (See Griffith and Street “Principles of Administrative Law”, p. 20.) Bias and Prejudice . Of a slightly lesser type of evil is prejudice. It is nearer to bias and sometimes it is likely to be misunderstood for bias. Judicial pronouncements on this aspect have made the distinction clear. The compilation of the words and phrases, which have been judicially defined, made by the West Publishing Co., mentions; Bias and prejudice are not synonymous terms. Prejudice is defined by Webster as to prepossess unexamined opinion or opinions formed without due knowledge of the facts and circumstances attending to the question, to bias, the mind by hasty and incorrect notion, and to give it an unreasonable bent to one side or other of a cause. Bias is the leaning of the mind, inclination, prepossession, and propensity towards some persons or objects, not leaving the mind indifferent. Bias is a particular influential power, which sways the judgment, the inclination of mind towards a particular object and is not synonymous with prejudice. A man may not be prejudiced without being biased about another, but he may be biased without being prejudiced. Thus bias is usually of three types: (1) Pecuniary bias; (2) Personal bias; and (3) . Bias as to subject matters Pecuniary Bias (1) . A series of consistent decisions in English Courts have laid down the rule that the pecuniary interest, howsoever small, will invalidate the proceedings. So great enthusiasm was there in the minds of the English Judges against the pecuniary interest that very small amount and negligible quantity of interest were considered to be a valid ground, for reversing the judgment of Lord Chancellor Cottenham by the Appellate Court in Dimes case.( ) In this case the appellant was engaged in 1852, 3 hlr 759 prolonged litigations against the respondent company. Against a decree passed by the V. C. Dimes he appealed before the Lord Chancellor, who gave the decision against him. It later came to the knowledge of the appellant that Lord Chancellor had a share in the respondent company. In appeal, their Lordships of House of Lords held that through Lord Chancellor forgot to mention about the interest in the company by mere inadvertence, yet the interest was sufficient to invalidate the decision given by the Lord Chancellor. Module – 1 73 Indian Courts also invariably followed the decision in Dimes’ case. The Privy Council made a reference to this famous case in the case of Vassilliadas ) .Thus a pecuniary interest, howsoever .(AIR 1945 SC 38 insufficient, will disqualify a person from acting as a Judge. Personal Bias (2) . Personal bias has always been matter of judicial interpretation. It can be claimed that no other type of bias came for judicial scrutiny as much as this type At least for a full century. With the growing interdependability of human relations, cases of personal bias favouring one or the other party, have grown tremendously. Personal bias can be of two types viz. (a) Where the presiding officer has formed the opinion without finally completing the proceeding. (b) Where he is interested in one of the parties either directly as a party or indirectly as being related to one of the parties. In fact, there are number of situations which may create a personal bias in the Judge’s mind against one party in dispute before him. He may be friend of the party, or hostility against one of the parties to a case. All these situations create bias either in favour of or against the party and will operate as a disqualification for a person to act as a Judge. The leading case on the point is Mineral Development Ltd. V. State of Bihar,( ) in this case, the petitioner company was owned by AIR 1960 SC 468 Raja Kamkshya Narain Singh, who was a lessee for 99 years of 3026 villagers, situated in Bihar, for purposes of exploiting mica f rom them. The Minister of Revenue acting under Bihar Mica Act cancelled his license. The owner of the company raja Kamalkshya Narain singh, had opposed the Minister in general election of 1952 and the Minister had filed a criminal case under section 500, Indian Penal Code, against him and the case was transferred to a Magistrate in Delhi. The act of cancellation by the Minister was held to be a quasi- judicial act. Since the personal rivalry between the owner of the petitioner’s company and the minister concerned was established, the cancellation order became vitiated in law. The other case on the point is Manek Lal v. Prem Chand (AIR 1957 S.C. 425) Here the respondent had filed a complaint of professional misconduct against Manek Lal who was an advocate of Rajasthan High Court. The chief Justice of the High Court appointed bar council tribunal to enquire into the alleged misconduct of the petitioner. The tribunal consisted of the Chairman who had earlier represented the respondent in a case. He was a senior advocate and was once the advocate-General of the State. The Supreme Court held the view that even though Chairman had no personal contact with his client and did not remember that he had appeared on his behalf in certain proceedings, and there was no real likelihood of bias, yet he was disqualified to conduct the inquiry. He was disqualified on the ground that justice not only be done but must appear to be done to the litigating public. Actual proof of prejudice was not necessary; reasonable ground for assuming the Module – 1 74