Administrative Law Notes | B.A. LL.B. (Five Year Course) Semester 7 | Mumbai University | munotes

Two things follow, and they are the whole justification for the subject.

First, the decisions cannot all be made by the legislature. Parliament cannot pass an Act for each ration card. It must lay down a policy and leave officials to apply it, which means officials must be given discretion, a power to choose between courses of action. Second, the disputes cannot all go to the ordinary courts, which are slow, expensive and unspecialised. So Parliament creates tribunals and appellate authorities to decide them.

Discretion in the hands of officials, and adjudication outside the ordinary courts, are exactly the two things that need controlling. Administrative law is the control.

The reasons for growth, one by one

The syllabus asks for the reasons for the growth of administrative law as a separate head, and an examiner expects a list that is explained rather than recited. There are eight that matter, and they overlap.

1. The change in the philosophy of the State. This is the root of the rest. Once the State accepts that it is responsible for whether people are fed, housed, employed and educated, it must acquire the powers to deliver those things, and powers of that size have to be supervised.

2. The inadequacy of the legislature. A legislature sits for a limited number of days, its members are not technical experts, and its procedure is slow and public. It cannot write the detailed rules for the safety of a nuclear installation, or revise the price of a drug every quarter. So it delegates. Delegated legislation is treated in [Delegated Legislation and Why It Grew].

3. The inadequacy of the ordinary courts. A civil suit is expensive, formal and slow. A workman injured in a factory, or a tenant facing eviction, cannot wait years. Tribunals were created to be quick, cheap and specialised, and they are treated in [Administrative Tribunals: Nature and Characteristics].

4. The need for flexibility. An Act of Parliament is rigid; it can be amended only by Parliament. Administrative rule making lets the executive respond to a famine, a currency crisis or an epidemic in days.

5. The scope for experiment. Administrative processes can be tried, evaluated and abandoned without the political cost of repealing a statute.

6. Technicality. Broadcasting spectrum, drug pricing, electricity tariffs, telecommunications interconnection and environmental standards are not subjects on which a general court or a general legislature has any advantage. They need bodies staffed by people who understand them.

7. Preventive action. The older law worked by punishment after the event. The modern State prefers to prevent: it licenses the shop before it opens, inspects the factory before the accident, and grants or refuses permission to build. Preventive administration means decisions taken in advance about individuals, and those decisions need controls.

8. The volume of public employment and public money. The State is the largest employer and the largest purchaser in the country. Every promotion, dismissal, tender and subsidy is a decision capable of being challenged.

The Indian Constitution chose the welfare State expressly

This is the part most competing notes leave out, and it is the part that makes the whole story Indian rather than borrowed.

India did not drift into the welfare State. The Constitution commits the country to it in Part IV, the Directive Principles of State Policy. Directive Principles are the provisions in Articles 36 to 51 which set out goals the State is to pursue. They are not enforceable in a court, and Article 37 says so, but Article 37 also says they are "fundamental in the governance of the country" and that it shall be the duty of the State to apply them in making laws.

Four of them are the charter of the Indian administrative State.

Read those four together and the conclusion is unavoidable. A State told to secure a living wage, to prevent the concentration of wealth, and to provide for the sick and the old, must have licensing powers, inspection powers, taxing powers, powers to fix prices and wages, and powers to run industries. The Constitution therefore willed the administrative State into existence, and administrative law is the price of it.

A worked example: one licence, and every issue in the subject

Meera Kulkarni applies to the Food and Drugs Administration for a licence to open a retail chemist's shop in Thane. The Act says a licence may be granted to a person who has a qualified pharmacist, suitable premises and adequate storage, and adds that the licensing authority "may refuse a licence if it considers that the grant would not be in the public interest". The authority refuses her application in a letter of one sentence, giving no reason. It grants a licence the same week to a shop fifty metres away.

Notice how many separate questions that single refusal raises, and where each is answered in this book.

1. Where did the authority get the power at all? From the Act, and from rules made under it. Whether those rules are valid is [Judicial Control over Delegated Legislation].
2. The words "may refuse ... if it considers" confer discretion. Whether discretion so wide is lawful, and how it must be exercised, is [Administrative Discretion and Why It Is Conferred].
3. Meera was never told what was held against her and never heard. That is [Audi Alteram Partem].
4. She was given no reasons. That is [Reasoned Decisions].
5. The neighbouring shop was treated differently on the same facts. That is arbitrariness under Article 14, and the grounds are in [Grounds of Judicial Review: Abuse of Discretion].
6. If the officer who refused had a relative in the neighbouring shop, that is [The Rule Against Bias].
7. If she wants the file, she can ask for it under the Right to Information Act 2005: [Obligations of Public Authorities and How a Request Is Made].
8. If she goes to court, the remedy she asks for is a writ: [Judicial Remedies against Administrative Arbitrariness: the Writs].
9. If the State is liable for the loss she suffered, that is [Tortious Liability of the State].

That is the syllabus, arising out of one letter about one shop. Administrative law is not a collection of unrelated topics. It is the set of answers to the question: what may an official do to Meera, and what can Meera do about it.

What this does NOT mean

It does not mean the State is the enemy. A student who reads only the case law comes away thinking administrative law exists to defeat the administration. It does not. Most administrative power is exercised properly and is the reason the ration reaches the shop and the water is fit to drink. The law supplies the controls that make the power tolerable, not the hostility.

It does not mean the welfare State is a modern Indian invention. The transformation happened across the world between roughly 1880 and 1950, and India's version is continuous with the British administrative machinery it inherited.

It does not mean administrative law is only about litigation. A great deal of it is about how decisions are structured before anybody goes to court: publication of rules, reasons, hearings, and the duty to disclose. The litigation is the visible tip.

Criticism, and the honest position

The growth of the administrative State has always had critics, and an answer that only praises it is a weak answer. The strongest objections are these. Wide discretion in officials means unequal treatment, because two officers apply the same words differently. Decision making moves out of public view into files. Tribunals staffed by administrators may lack independence, which is the concern of [Tribunalisation and the Threat to Judicial Independence: the Tribunals Reforms Act 2021]. And rules made by departments escape the scrutiny that a Bill receives.

The answer is not to wish the administrative State away, since the functions it performs are the ones the Constitution requires. The answer is the body of controls this book teaches. That is why the two theories in [Red Light and Green Light Theories] matter: they are two views of what those controls are for.

Quick revision

1. Laissez faire State: defence, order, revenue, justice. Welfare State: the same plus responsibility for material well being.
2. The transformation created two problems: officials with discretion, and adjudication outside the courts. Administrative law controls both.
3. Eight reasons for growth: change in State philosophy, inadequacy of the legislature, inadequacy of the courts, need for flexibility, room for experiment, technicality, preventive action, and the scale of public employment and spending.
4. India adopted the welfare State expressly through the Directive Principles: Articles 38, 39, 41 and 43.
5. Article 37: Directive Principles are not enforceable by a court but are fundamental in the governance of the country.
6. The strongest criticism is unequal treatment through wide discretion and the loss of public scrutiny. The answer is control, not abolition.

Test yourself

1. What is meant by the transformation from a laissez faire State to a welfare State, and why did it produce a new branch of law? Laissez faire means "leave it alone": a State confined to defence, order, revenue and justice. A welfare State takes responsibility for the material well being of its people and so must regulate, license, provide and employ. Delivering those functions required officials to be given discretion and required disputes to be decided outside the ordinary courts. Administrative law is the body of law developed to control discretion and to supervise adjudication outside the courts.

2. Give five reasons for the growth of administrative law. Any five of: the change in the philosophy of the State; the legislature's inability to make detailed and technical rules; the cost, delay and formality of the ordinary courts; the need for flexible rules that can be changed quickly; the room administrative processes give for experiment; the technical nature of modern regulation; the shift from punishing after the event to preventing before it; and the sheer volume of decisions the State takes as employer and purchaser.

3. Which provisions of the Constitution show that India chose the welfare State? The Directive Principles in Part IV, in particular Article 38 (social order and reduction of inequality), Article 39 (livelihood, distribution of material resources, no concentration of wealth, equal pay), Article 41 (right to work, education and public assistance) and Article 43 (living wage and decent conditions). Article 37 makes them unenforceable in a court but fundamental in the governance of the country.

4. "Administrative law exists to obstruct the administration." Comment. The statement is wrong as a description and confuses control with obstruction. Administrative power is necessary because the Constitution commits the State to functions that cannot be performed without it. Administrative law supplies conditions on the exercise of that power, such as a hearing, reasons, relevant considerations and an absence of bias, which make wide power tolerable. Whether the emphasis should fall on controlling the administration or on enabling it is the dispute between the red light and green light theories.

5. Why could the ordinary civil courts not simply be given all these disputes? Because of cost, delay, formality and the absence of specialised knowledge. A civil suit is unsuited to a workman's compensation claim or a tariff dispute, both of which need quick and expert decision. That is why tribunals were created, and why their independence then became a problem of its own.

Griffith and Street, in England, approached it by asking three questions rather than by framing a sentence: what sort of power does the administration exercise, what are the limits of that power, and by what means is the administration kept within those limits. That is not a definition so much as a syllabus, and it is a good one, because the three questions map exactly onto the three things a student must be able to do.

H.W.R. Wade treated administrative law first and foremost as the law about the control of governmental power, and said the primary purpose of the subject is to keep the powers of government within their legal bounds so as to protect the citizen. This is the red light view stated as a definition.

The Indian Law Institute added two matters that none of the English or American definitions covered, and they matter in India. The first is the control exercised by the legislature and by other bodies over the administration, not only by the courts, which brings in [Legislative Control over Delegated Legislation] and the Ombudsman machinery in [The Ombudsman]. The second is the liability of public authorities, which is a large part of Module III and has no counterpart in Wade's definition.

A working definition for this book

Nothing turns on choosing one, and an examiner is not looking for a winner. What is wanted is a definition that covers the four things administrative law actually deals with, and here they are.

1. Organisation and powers: which authorities exist, and what they may do.
2. Rule making: the power of the administration to make binding rules, and the limits on it.
3. Adjudication and procedure: how the administration decides matters affecting individuals, and the procedural standards it must meet.
4. Control and remedies: judicial, legislative and other control, and what an aggrieved person can obtain.

A definition that includes all four is safe. Jennings covers 1, Davis covers 3 and 4, Wade covers 4, and the Indian Law Institute adds control by other bodies and liability.

The nature of administrative law

Three propositions describe its nature, and each is examinable on its own.

It is public law. Public law governs the relationship between the individual and the State. Private law governs relationships between individuals. Administrative law is public law because on one side of every question there is always a public authority exercising a power the ordinary citizen does not have.

But the line is not clean in India, and pretending it is will cost marks. When the State makes a contract or commits a tort, the ordinary private law of contract and tort applies to it, subject to the special rules in [Contractual Liability of the State] and [Tortious Liability of the State]. So administrative law borrows from private law at its edges.

It is largely judge made. Unlike the Civil Procedure Code or the Indian Contract Act, there is no Administrative Procedure Act in India. There is no statute that sets out the principles of natural justice, the grounds of judicial review, the doctrine of legitimate expectation or the tests for excessive delegation. Every one of those was worked out by courts, case by case. This is the single most important practical fact about the subject and it explains the shape of these notes: the chapters in Modules I to III are organised around doctrines and cases, and only in Modules III and IV do statutes take over.

It is a growing law. Because it is judge made, it changes as the courts change their minds. Proportionality was not a ground of review in India thirty years ago. Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, stood as authority for a generation and was overruled in 2017. A student who learns administrative law as a fixed list of rules has misunderstood it.

Facts. Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, arose during the Emergency. After the Presidential Order of 27 June 1975 under Article 359(1) suspended the right to move any court for the enforcement of Articles 14, 21 and 22, detenus filed habeas corpus petitions in the High Courts challenging their detention under the Maintenance of Internal Security Act 1971. The question was whether such a petition was maintainable at all while that Order was in force.

Held. By a majority of four to one, no person had any locus standi to move a writ petition under Article 226 for habeas corpus to challenge a detention order on the ground that it was not in compliance with the Act, or was illegal, or was mala fide, or was based on extraneous considerations. Article 21 was said to be the sole repository of the right to life and personal liberty against the State, so a claim to habeas corpus was an enforcement of Article 21 and was barred by the Order. Khanna J dissented.

Why it matters here. It is used in this chapter only to show that the subject moves: it was overruled in terms in 2017. The case is treated properly, with the dissent and the overruling, in [Rule of Law].

The scope of administrative law

Scope means: what topics fall inside it. The honest answer for an Indian student is the syllabus itself, and it divides into five.

A worked example: telling the four elements apart

The State Transport Authority is empowered by an Act to grant permits for stage carriages, and the Act says the Authority "shall have regard to the interest of the public generally".

• The Authority is constituted by section 68 of the Act and consists of a chairman and two members. That is organisation and powers, Jennings' part of the definition.
• The Authority publishes a notification laying down that no permit will be granted to an operator with more than twenty vehicles. That is rule making, and whether the Authority could lawfully make such a rule is a question of delegated legislation.
• Sunil Bhosale applies for a permit and is refused after a hearing at which he was shown the objections and allowed to reply. That is adjudication and procedure.
• Sunil challenges the refusal in the High Court under Article 226 on the ground that the twenty vehicle rule is irrelevant to the interest of the public. That is control and remedies.

One statutory power, four different questions, and each belongs to a different part of the subject. Being able to sort a fact pattern into these four is most of what an examiner is testing.

What it does NOT mean

Administrative law is not the same as administration. How a department organises its files, trains its officers or fixes its targets is administration. Administrative law is concerned with those matters only so far as they have legal consequences for somebody.

It is not confined to judicial review. Judicial review is the most visible part and the largest part of the case law, but the internal appeal, the departmental inquiry, the Lokayukta and the information request are all administrative law and all dispose of far more grievances than the High Courts do.

It is not a branch of constitutional law, and not wholly separate from it either. The relationship is the subject of [Administrative Law and Constitutional Law], and the answer there is that in India the two are continuous rather than divided.

Quick revision

1. Working definition: the branch of public law determining the organisation, powers and duties of administrative authorities, the procedure they must follow, and the remedies available against them.
2. Jennings: the law relating to the administration, its organisation, powers and duties. Wide, but omits procedure and remedies and overlaps constitutional law.
3. Davis: powers and procedures of agencies, especially judicial review. Adds procedure and review, but underplays rule making and internal control.
4. Griffith and Street: three questions, what power, what limits, what means of keeping within them.
5. Wade: the control of governmental power to protect the citizen. The red light view as a definition.
6. Indian Law Institute: adds control by bodies other than the courts, and the liability of public authorities.
7. Nature: public law; largely judge made, because India has no Administrative Procedure Act; and constantly growing.
8. Scope: rule making, decision making, adjudication outside the courts, control and remedies, and liability with accountability and openness.

Test yourself

1. Define administrative law and state its scope. Administrative law is that branch of public law which determines the organisation, powers and duties of administrative authorities, prescribes the procedure they must follow in exercising those powers, and provides the remedies available to a person aggrieved. Its scope covers rule making by the administration, decision making affecting individuals and the procedural standards attaching to it, adjudication by tribunals outside the ordinary courts, the control of discretion and the remedies for its abuse, and the liability and accountability of public authorities including the right to information.

2. Compare Jennings' definition with that of K.C. Davis. Jennings defines the subject by reference to the administration itself: its organisation, powers and duties. It is comprehensive but so wide that it overlaps constitutional law, and it omits both procedure and remedies. Davis defines it by reference to the powers and procedures of administrative agencies and especially to judicial review, which supplies both the omissions but gives too little weight to administrative rule making and to control exercised otherwise than by the courts. A satisfactory definition needs the organisation from Jennings and the procedure and review from Davis.

3. Why is administrative law described as judge made law in India? Because there is no general statute laying down its principles. India has no Administrative Procedure Act. The rules of natural justice, the doctrine of excessive delegation, the grounds of judicial review, legitimate expectation and proportionality were all developed by the courts case by case, and they continue to develop.

4. Is administrative law public law or private law? It is public law, because in every administrative law question one party is a public authority exercising a power the ordinary citizen does not possess. The classification is not absolute: when the State contracts or commits a tort, the ordinary private law applies to it, subject to the special constitutional rules on contracts under Article 299 and on liability under Article 300.

5. Explain why writers differ over the definition of administrative law. Because a definition compresses a view of what the subject is for. Writers who see it as describing the machinery of government define it in terms of organisation, powers and duties, as Jennings did. Writers who see it as a means of controlling government define it in terms of limits and review, as Wade did. The disagreement is the same one that divides the red light and green light theories.

So the Constitution is both the source of the power and the source of the control. That symmetry is the difference between Indian administrative law and English administrative law, and it is worth saying in an answer.

2. Statutes

Almost every administrative power in daily use is conferred by an ordinary Act of the legislature. The Act says who may exercise the power, on what conditions, for what purpose and subject to what appeal.

The statutes that matter for this syllabus are the ones the University names, and each has its own chapter: the Administrative Tribunals Act 1985, the Tribunals Reforms Act 2021, the Commissions of Inquiry Act 1952, the Central Vigilance Commission Act 2003, the Lokpal and Lokayuktas Act 2013, the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971, the Prevention of Corruption Act 1988 and the Right to Information Act 2005.

Two cautions about statutes as a source, both of which are examinable.

A statute is a source of administrative law only so far as it is valid. If it violates a fundamental right it is void under Article 13. If it delegates an essential legislative function it is bad for excessive delegation: [Excessive Delegation: Permissible and Impermissible Delegation].

And a statute may be on the statute book without being in force. An Act comes into force on the date it says, or on a date the Government appoints by notification. Assent is not commencement. The Whistleblowers' Protection Act, which received the President's assent on 9 May 2014, has never been brought into force, because no notification under its section 1(3) has ever been issued: see [Whistleblowers' Protection: the Act of 2014 and the PIDPI Resolution]. A student who cites it as live law is citing something that has never operated for a single day.

3. Delegated legislation

The rules, regulations, bye laws, orders, notifications and schemes made by the executive under the authority of a statute are law, and there is far more of it than there is primary legislation. It binds citizens and courts exactly as an Act does, so long as it is within the power conferred.

It is both a source of administrative law and one of its main subjects: the whole of [Delegated Legislation and Why It Grew] and the three control chapters that follow are about when it is valid.

4. Judicial decisions

In India this is the most productive source of all, and an answer that puts the Constitution first and stops has missed the point of the subject.

There is no Administrative Procedure Act in India. Take away the decided cases and there is no rule against bias, no right to a hearing, no duty to give reasons, no doctrine of legitimate expectation, no proportionality, no test for excessive delegation, and no distinction between sovereign and non-sovereign functions. Every one of those is judge made.

Judicial decisions operate as a source in three ways.

By declaring doctrine. The Supreme Court states a principle which binds all courts under Article 141, and the principle then governs administrative behaviour generally, not only the parties.

By interpreting statutes. The meaning a court gives to "public interest" or "reasonable cause" in an Act becomes part of the Act for practical purposes.

By developing remedies. Compensation for a constitutional wrong, and public interest litigation, were both created by the courts without any statute authorising them.

And because doctrine is judge made, it can be unmade. A rule stated in 1976 may be overruled in 2017, which is what happened to the majority view in the Emergency detention case discussed in [Rule of Law].

5. Administrative directions, circulars and instructions

Government departments issue enormous quantities of guidance: circulars, office memoranda, standing orders, manuals and executive instructions. They are not made under any statutory power to legislate, so they are not delegated legislation, and the ordinary position is that they do not by themselves create rights enforceable by a citizen.

But they are a real source, for four reasons that an examiner rewards.

1. They bind the administration internally, and an officer who ignores a departmental instruction can be proceeded against for it.
2. They fill the space where a statute confers a discretion and lays down no criteria, which is a very large space.
3. Where a department publishes a scheme or a policy, a person who acts on it may be entitled to hold the department to it, which is the doctrine in [The Doctrine of Legitimate Expectation] and, where a promise has been acted on, [Estoppel and Waiver against the Government].
4. Departing from a published policy without explanation in one case while following it in others is arbitrary under Article 14 and is a ground of review.

The trap is to call them "law". They are not. Say instead that they are administratively binding, that they structure discretion, and that they can generate a legitimate expectation.

6. Reports, commissions and administrative practice

Two smaller sources complete the list.

Reports of committees and commissions do not have the force of law, but they shape it and they are quoted in judgments. The Committee on Ministers' Powers, which reported in England in 1932 and is discussed in [Delegated Legislation and Why It Grew], the Franks Committee on tribunals and inquiries of 1957, the First Administrative Reforms Commission of 1966 which recommended the Lokpal and Lokayukta and is discussed in [The Ombudsman], the Law Commission of India, and the Second Administrative Reforms Commission, are the ones this syllabus touches.

Custom and settled administrative practice is the weakest source, but a long and consistent practice is evidence of how a power has always been understood, and a sudden departure from it invites the question why.

Which source prevails

A worked example

The Maharashtra Government wishes to reserve a proportion of stage carriage permits for operators from a particular district.

If it does this by constitutional amendment, no court can test it except against the basic structure. If it does it by statute, the statute is valid unless it offends Articles 14 or 19. If it does it by rule made under the Motor Vehicles Act, the rule must be within the rule making power conferred by the Act and must not offend the Constitution, so there are two tests to satisfy instead of one. If it does it by circular to the Transport Authority, the circular cannot cut down a right the Act gives an applicant, and an applicant refused a permit on the strength of it can say that the Authority fettered its statutory discretion by treating a circular as binding: [Grounds of Judicial Review: Failure to Exercise Discretion].

Same policy, four instruments, four different legal positions. That is what knowing the sources is for.

What it does NOT mean

It does not mean the six sources are of equal weight. The Constitution is supreme, and in practice judicial decisions supply most of the actual doctrine.

It does not mean that everything a government issues is law. Circulars, press notes and manuals are not law, however official they look.

It does not mean English decisions are a source in India. They are persuasive only. Indian courts cite Wednesbury and Ridge v Baldwin constantly, but those cases operate through the Indian decisions that adopted them, not on their own authority.

Quick revision

1. Six sources: Constitution, statutes, delegated legislation, judicial decisions, administrative directions, and reports with administrative practice.
2. The Constitution both creates administrative power (Articles 53, 154, 73, 162, Part XIV, 323A, 323B) and controls it (Articles 13, 14, 19, 21, 32, 226, 227, 299, 300).
3. Judicial decisions are the largest working source, because India has no Administrative Procedure Act.
4. Delegated legislation is law; administrative circulars are not, but they bind internally, structure discretion and can found a legitimate expectation.
5. Hierarchy: Constitution, then statute, then delegated legislation, then circulars; practice never validates illegality.
6. Assent is not commencement: an Act on the statute book may never have been brought into force.

Test yourself

1. State the sources of administrative law in India and explain which is the most important. The Constitution, statutes, delegated legislation, judicial decisions, administrative directions, and reports and administrative practice. The Constitution is the highest, since everything else must conform to it, and it is unusual in being both the source of administrative power and the source of the control over it through Articles 32, 226 and 227. In terms of the actual content of the subject, judicial decisions are the most productive, because India has no general statute on administrative procedure and the doctrines of natural justice, review of discretion, legitimate expectation, proportionality and excessive delegation are all judge made.

2. Are administrative circulars a source of law? Give reasons. They are a source of administrative law but they are not law. They are not made under a power to legislate, so they cannot create rights enforceable in themselves and cannot override a statute or a rule. They are nevertheless important: they bind the administration internally, they supply criteria where a statute confers a bare discretion, a published scheme can create a legitimate expectation, and departing from a published policy in an individual case without explanation is arbitrary under Article 14.

3. Which provisions of the Constitution supply the remedies in administrative law? Article 32, giving the Supreme Court power to issue writs for the enforcement of fundamental rights; Article 226, giving the High Courts a wider power to issue writs both for fundamental rights and for any other purpose; and Article 227, giving the High Courts superintendence over all courts and tribunals within their jurisdiction.

4. A departmental circular conflicts with a rule framed under the parent Act. Which prevails and why? The rule prevails. A rule framed under a statutory rule making power is delegated legislation and has the force of law; a circular is an executive instruction with no legislative force. The circular can operate only in the space the rule leaves open.

5. Why is it wrong to treat an Act as part of the law merely because it has received the President's assent? Because assent is not commencement. An Act comes into force on the date it appoints or on a date notified by the Government, and until then it has no operation. The Whistleblowers' Protection Act 2014 received assent on 9 May 2014 and has never been brought into force, because no notification under its section 1(3) has ever been issued.

The strengths are obvious. It takes rights seriously, it produced the writ jurisdiction, the rules of natural justice and the grounds of review, and it supplies the answer when the administration behaves badly. Every doctrine in Module III of this book is a red light doctrine.

Its weaknesses are equally real, and an answer must state them. It is negative: it tells the administration what it may not do and gives no help in doing the job well. It assumes an opposition between State and citizen which does not fit a welfare State whose activity most citizens want. It is available only to those who can afford litigation and who know they have been wronged. And it arrives late, after the decision has been taken and the harm done.

The green light theory

The image is a traffic light showing green: the law's function is to let the vehicle through.

The theory is associated with the utilitarian and Fabian tradition in England, with writers such as Jennings and Robson, and later with Harlow and Rawlings' own account of it. It was in part a reaction against Dicey, whose hostility to administrative adjudication the green light writers regarded as a misunderstanding.

Its propositions are these.

1. The State is not an enemy but the means by which a community achieves what individuals cannot achieve alone: public health, education, social security, clean water.
2. The purpose of administrative law is therefore to facilitate that work, and to improve the quality of administrative decisions rather than to obstruct them.
3. The best controls are internal and in advance: good procedures, clear rules, trained officials, published criteria, internal appeals, inspection and audit.
4. Courts are not the ideal controllers. Judges are generalists, litigation is slow and expensive, and a judgment settles one case without improving the system that produced it. Specialised tribunals and the Ombudsman are preferred.
5. Discretion is not an evil. It is what allows an official to do justice in the individual case rather than apply a rigid rule to everyone.

Its strengths are that it addresses the vast majority of administrative decisions, which never reach any court; that it is preventive rather than remedial; and that it improves matters for everybody rather than only for the litigant. Modules II and IV of this book contain the green light material: the duty to publish rules, to consult, to give reasons, the Lokayukta, the Central Vigilance Commission, and the Right to Information Act.

Its weaknesses are that internal control can be self serving, since the body being controlled designs the control; that without an external check there is no guarantee against the determined abuse of power; and that "improving the quality of administration" is a matter of degree, whereas legality is not.

The amber light theory

Neither pure position survives contact with a real legal system, and the modern account, sometimes called the amber light or middle way, holds both.

It accepts that administrative power is necessary and that most of it should be facilitated, and it accepts that there must be an effective external check for the cases where the administration goes wrong. It looks for control that is preventive where possible and remedial where necessary, and it treats courts as the last line rather than the first.

Indian administrative law is amber light in practice, and this is the point to make in an answer about India. A court that insists on a hearing before an order is passed is preventing bad administration, not merely punishing it. A court that declines to substitute its own view for the administration's on a question of policy, as in Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, is leaving the green light showing while keeping the power to turn it red.

Facts. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, arose from admissions to the MBBS and BDS courses in the two government medical colleges of Jammu and Kashmir for 1988-89. In an earlier case the High Court had directed the State to entrust selection to a statutory independent body, and until that was done, to a body free from executive influence. The State issued a procedure order in 1987 constituting a Competent Authority. Unsuccessful candidates challenged the selection as violating the High Court's earlier directions, and the High Court allowed their petitions and issued a mandamus.

Held. Although separation of powers is not recognised under the Constitution in its absolute rigidity, the Constitution makers meticulously defined the functions of each organ, and the legislature, executive and judiciary have to function within their own spheres. Judicial review is a powerful weapon against unconstitutional exercise of power by the legislature and the executive, but while their power is subject to judicial restraint, the only check on the court's own power is the self imposed discipline of judicial restraint. In exercising judicial review of administrative action the court is not an appellate authority, and the Constitution does not permit it to direct or advise the executive in matters of policy, provided the executive keeps within its constitutional and statutory limits.

Why it matters here. It is the clearest Indian statement of the amber light position: the court asserts the power to strike down unlawful action and in the same breath refuses to run the administration. The case is treated more fully in [Separation of Powers].

The two theories side by side

A worked example

A municipal corporation demolishes an unauthorised structure without notice to the occupier.

A red light analysis asks: was there power to demolish, was the procedure prescribed by the statute followed, was there a hearing as natural justice requires, and if not the demolition order is quashed and the occupier gets a remedy in court.

A green light analysis asks a different set of questions: does the corporation publish the criteria on which it decides what is unauthorised, is there an internal appeal to a senior officer, is there a standing instruction requiring notice, is there an inspection system that would have caught the structure before it was built, and could the occupier complain to the Lokayukta without going to court at all.

An amber light analysis says both are needed: the published criteria and the internal appeal will dispose of ninety-nine cases, and the writ jurisdiction must remain for the hundredth.

Notice that the green light questions are the ones that would have prevented the demolition happening unlawfully, and the red light question is the only one that helps this occupier now. That is the whole argument in miniature.

What it does NOT mean

Green light does not mean the administration should be uncontrolled. It means the control should be built into the process rather than applied from outside afterwards. A writer who describes it as "pro government" and stops has misdescribed it.

Red light does not mean judges should run the country. It means the courts should be able to declare unlawful action unlawful. Asif Hameed shows that a strongly review minded court can still refuse to decide policy.

These are not rules of law. No court has adopted either theory by name, and neither can be cited as authority for a proposition. They are ways of explaining the pattern the decided cases make.

Quick revision

1. Red light: the State is a danger, administrative law controls it, the courts are the controller, control is external and after the event, discretion is to be confined. Dicey and Wade.
2. Green light: the State is the instrument of welfare, administrative law improves administration, control is internal and in advance through procedure, tribunals and the Ombudsman are preferred, discretion is useful. Jennings and Robson.
3. Amber light: both, with prevention where possible and judicial review as the last line. This is the Indian position in practice.
4. The image comes from Harlow and Rawlings.
5. Red light strength is protection of rights; weakness is that it is negative, late and available only to litigants. Green light strength is that it reaches every decision; weakness is that the controller and the controlled are the same body.
6. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899: judicial review is a powerful weapon, but the court is not an appellate authority and may not advise the executive on policy.

Test yourself

1. Explain the red light and green light theories of administrative law. They are two views of the function of the subject, named after traffic lights by Harlow and Rawlings. The red light view sees administrative power as inherently dangerous and administrative law as a system of external control, exercised mainly by the courts after a decision is taken, whose purpose is to keep the executive within legal limits and protect individual liberty. The green light view sees administrative power as the means by which social goals are achieved and administrative law as a means of improving the quality of administration from within, through good procedure, clear published criteria, internal appeals, tribunals and the Ombudsman, with litigation as a last resort.

2. Which theory does Indian administrative law follow? Neither in a pure form. Indian law is best described as amber light. The courts have built an extensive apparatus of external control, including the writs, natural justice and the grounds of review, which is red light in character; but they have also insisted on procedures that prevent bad decisions being taken at all, and Parliament has created green light machinery such as tribunals, the Central Vigilance Commission, the Lokpal and Lokayuktas and the Right to Information Act. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, states the balance: the court will strike down action outside constitutional or statutory limits, but it is not an appellate authority and will not advise the executive on policy.

3. State two criticisms of the red light theory. It is negative, in that it tells the administration what it may not do without helping it do the job well, and it assumes an opposition between State and citizen that does not fit a welfare State. It also operates only after the event and only for those who can afford to litigate, so it leaves untouched the great mass of administrative decisions that never reach a court.

4. State two criticisms of the green light theory. Internal control is designed and operated by the very body being controlled, so it cannot be relied on against a determined abuse of power; and improving the quality of administration is a matter of degree, whereas the legality of an act is not, so the green light view has no clear answer to an official who acts outside the law.

5. Why is the amber light theory said to be a middle way? Because it accepts the green light premise that most administrative power is legitimate and should be facilitated by good procedure, and the red light premise that there must be an effective external check for the cases where the administration acts unlawfully. It prefers prevention where prevention is possible and keeps judicial review as the last line rather than the first.

The English position today is a fully developed administrative law with a specialised Administrative Court within the ordinary High Court, a unified tribunals structure, and a Parliamentary Commissioner for Administration, the Ombudsman.

The United States

The American story is different in three ways, and each is examinable.

A written constitution with a strict separation of powers. Articles I, II and III of the Constitution of 1787 vest legislative, executive and judicial power in three separate branches. That produced the non-delegation doctrine: if legislative power is vested in Congress, Congress cannot give it away. American courts have therefore always been more anxious about delegation than English courts, and the doctrine of an "intelligible principle" which the delegate must be given is their answer. The Indian doctrine of essential legislative function in [Excessive Delegation: Permissible and Impermissible Delegation] is a cousin of it.

Regulation through independent commissions. From the Interstate Commerce Commission of 1887 onwards, the United States regulated railways, trade, securities, broadcasting and labour through independent commissions, which combined rule making, investigation and adjudication in one body. That combination of functions is precisely what the red light theory objects to, and American administrative law grew up around it.

Codified procedure. The Administrative Procedure Act 1946 is the great difference from England and India. It lays down, by statute, how agencies must make rules, how they must adjudicate, and on what grounds a court may set their action aside. India has no equivalent, which is why Indian administrative law is judge made: see [What Administrative Law Is: Definition, Nature and Scope].

France: droit administratif

This is the part of the syllabus students cannot answer, and it is the part examiners like, so learn it properly.

Droit administratif means, simply, administrative law, but the words are kept in French because the French institution is not the same as the English one. Its distinguishing feature is that disputes between a citizen and the administration are decided not by the ordinary civil courts but by a separate hierarchy of administrative courts, at the head of which stands the Conseil d'Etat, the Council of State.

How it arose. After the Revolution, French law separated the administration from the ordinary courts, in part from distrust of the old judiciary, which had obstructed reform. The ordinary courts were forbidden to interfere with the administration. That left citizens with no remedy, so the Conseil d'Etat, originally an advisory body attached to the executive, developed the function of hearing complaints against the administration, and over the nineteenth century turned itself into a genuine court.

Its features, which are what an answer needs:

1. A separate system of administrative courts, with the Conseil d'Etat at the top, and a Tribunal des Conflits to decide which system a case belongs to.
2. The law applied is not the ordinary civil law but a body of rules developed by the administrative courts themselves for the relations between the administration and the citizen.
3. It is judge made, built case by case by the Conseil d'Etat, and in that respect it resembles Indian administrative law more than the codified French civil law does.
4. Its members are trained administrators as well as lawyers, so the court understands the administration it supervises.
5. It is, by common consent, generous to the citizen: the remedy for excess of power is readily available, and State liability is wider than at common law.

Dicey's mistake, and why it matters. Dicey treated droit administratif as a system of privilege that placed officials beyond the ordinary law and protected them from liability. That was wrong on the facts. The Conseil d'Etat has often been more effective in controlling the administration than the English courts were, and French State liability was in some respects wider than English liability at the same date. Dicey later modified his view. The examiner's question is usually "was Dicey right about droit administratif?", and the answer is no, with those reasons.

India

Before 1947. The Company and then the Crown administered India through a service with very wide powers, and much of the modern statutory machinery, the Police Act, the Land Acquisition Act, the Civil Procedure Code and the various municipal Acts, dates from that period. The High Courts established in 1861 had power to issue the prerogative writs within the presidency towns, so English administrative law arrived with the English courts, but the writ jurisdiction did not extend to the whole country.

The Constitution changed everything, in three ways.

1. Articles 32 and 226 made the writ jurisdiction universal and, in the case of Article 32, itself a fundamental right. No English court has a jurisdiction guaranteed against Parliament in that way. This is the single largest difference between English and Indian administrative law.
2. Part III supplied substantive standards. Article 14 makes arbitrariness unlawful, Article 19 limits restrictions on freedoms, Article 21 requires a fair procedure. In England the courts had to construct such standards out of the common law; in India they are written down and entrenched.
3. Part IV committed the State to the welfare functions that make administrative power necessary, as set out in [The Rise of the Administrative State].

The growth since 1950 has run through judicial decisions, and the milestones are the chapters of this book: the classification of functions, the extension of natural justice to administrative action, the doctrine of essential legislative function, the creation of tribunals under Articles 323A and 323B, the development of legitimate expectation and proportionality, and the statutory machinery of the Lokpal, the Central Vigilance Commission and the Right to Information Act.

English and Indian administrative law compared

The syllabus lists this as its own head, so it deserves its own table.

The one sentence to take away: English administrative law rests on the common law and can be altered by Parliament; Indian administrative law rests on the Constitution and cannot.

The four systems at a glance

What it does NOT mean

It does not mean England had no administrative law before 1932. It had the prerogative writs from the middle ages. What it lacked was recognition and a name.

It does not mean droit administratif is a system of official privilege. That was Dicey's charge and it was mistaken. The Conseil d'Etat is a court, and a demanding one.

It does not mean India merely copied England. India took the writs and the doctrines, and then placed them on a constitutional foundation England does not have, which changes what the courts can do when Parliament tries to exclude them.

Quick revision

1. England: Dicey denied administrative law existed; the prerogative writs were always there; Committee on Ministers' Powers 1932, Franks Committee 1957, revival of judicial review from the 1960s.
2. United States: strict separation of powers, the non-delegation doctrine and the intelligible principle, regulation through independent commissions, and the Administrative Procedure Act 1946.
3. France: droit administratif, a separate hierarchy of administrative courts headed by the Conseil d'Etat, with the Tribunal des Conflits allocating cases; judge made, expert and generous to the citizen. Dicey misunderstood it.
4. India: English machinery plus a constitutional foundation. Articles 32 and 226 make review universal, Article 32 is itself a fundamental right, and Part III supplies written standards.
5. English against Indian: common law and a sovereign Parliament against a supreme Constitution, which is why an ouster clause is a construction question in England and a constitutional question in India.
6. Neither England nor India has a codified administrative procedure; the United States does.

Test yourself

1. What is droit administratif, and was Dicey right about it? Droit administratif is the French system under which disputes between the citizen and the administration are decided by a separate hierarchy of administrative courts headed by the Conseil d'Etat, applying a body of rules developed by those courts rather than the ordinary civil law, with a Tribunal des Conflits to decide which hierarchy a case belongs to. Dicey treated it as a system of privilege placing officials beyond the ordinary law, and he was wrong: the Conseil d'Etat is a genuine court which has often controlled the administration more effectively than the English courts did, and French State liability was in some respects wider than English liability. Dicey later modified his view.

2. Trace the growth of administrative law in England. English lawyers long denied that administrative law existed, following Dicey's view that everyone is subject to the ordinary law in the ordinary courts. The denial was inaccurate, since the prerogative writs of certiorari, prohibition, mandamus, habeas corpus and quo warranto had always controlled inferior bodies. From the nineteenth century onwards, social legislation created officials with wide powers and tribunals to decide the resulting disputes. The Committee on Ministers' Powers reported in 1932 on delegated legislation and administrative adjudication, the Franks Committee reported in 1957 and required openness, fairness and impartiality in tribunals, and judicial review revived from the 1960s.

3. Distinguish English administrative law from Indian administrative law. England has an unwritten constitution and a sovereign Parliament, so the power of judicial review rests on the common law and could in principle be curtailed by statute, and the standards of review were built out of the common law. India has a written and supreme Constitution: the writ jurisdiction is conferred by Articles 32 and 226, Article 32 is itself a fundamental right, the substantive standards are written into Articles 14, 19 and 21, and an attempt to oust judicial review runs into constitutional limits rather than mere questions of construction. Neither country has a codified administrative procedure.

4. What is the significance of the United States Administrative Procedure Act 1946 for a student of Indian administrative law? It is the contrast that explains why Indian administrative law is judge made. The American Act prescribes by statute how agencies make rules, how they adjudicate and on what grounds a court may set their action aside. India has no equivalent, so the rules of natural justice, the grounds of review and the limits on delegation had to be worked out by the courts case by case, and they continue to change as the courts change their minds.

5. Why did the four countries answer the same question differently? The question in each was whether citizen against State disputes should go to the ordinary courts or to special courts. England answered the ordinary courts, from distrust of any special regime for officials. France answered special courts, from distrust of the ordinary judiciary after the Revolution. The United States kept the ordinary courts but placed regulation in independent commissions and then codified their procedure. India kept the ordinary courts, added tribunals under Articles 323A and 323B, and guaranteed access to the courts by the Constitution itself.

There is a reason the overlap is unavoidable in India specifically. Because there is no Administrative Procedure Act, Indian courts had to find the standards of administrative behaviour somewhere, and the place they found them was Part III of the Constitution. So Indian administrative law is built out of constitutional material. That is a genuine difference from England, where the standards came from the common law.

The two views

There are two respectable positions on the relationship and a student should know both.

They are two distinct branches with a common source. On this view, associated with English writers and with the way the subjects are taught, constitutional law is the genus and administrative law a species of it. The subjects have different questions, different literature and different examinations, and the fact that they share provisions does not make them one subject any more than criminal law and the law of evidence are one subject because a trial uses both.

They are one subject artificially divided. On this view, associated with writers such as Keith, there is no logical distinction, only a difference of degree; you cannot say where constitutional law ends and administrative law begins, and the division is a matter of convenience in teaching.

The position to take in an answer about India is the second, qualified: the distinction is one of emphasis and convenience rather than of principle, because in India the substantive standards of administrative law are themselves constitutional provisions, and the remedy in every case is a constitutional remedy under Article 32 or Article 226.

The distinction in a table

The last row is the one that decides cases. Where a rule of administrative law conflicts with the Constitution, the Constitution prevails. Administrative law operates inside constitutional limits and can never rise above them.

A worked example: one dismissal, two subjects

Prakash Deshmukh is a clerk in a State government department. He is dismissed from service by an order which recites that his conduct has been unsatisfactory. He was never told what conduct was meant and never given a chance to answer.

The constitutional law questions are about structure and power. Is the department part of the State? Under which entry of which List does the Act constituting the service fall? Does the post fall within a service under the State, so that Article 311 applies at all? Is the authority which dismissed him subordinate to the authority which appointed him, which Article 311(1) forbids?

The administrative law questions are about the exercise of power. Did the authority follow the procedure prescribed by the service rules? Was Prakash given notice of the charges and a reasonable opportunity of being heard? Were reasons given? Was the decision based on relevant material? Was the punishment so disproportionate that it can be interfered with?

The remedy belongs to both. Prakash will file a petition under Article 226, or an application to the State Administrative Tribunal constituted under the Administrative Tribunals Act 1985, with the High Court's jurisdiction under Article 226 preserved.

Notice that a lawyer preparing that case does not stop at any border between the two subjects. That is the practical meaning of saying the division is one of convenience.

What it does NOT mean

It does not mean the distinction is useless. It tells you where to look. A question about whether a statute is within the legislature's competence is answered from the Lists in the Seventh Schedule; a question about whether an officer heard the applicant is answered from the case law on natural justice. Knowing which kind of question you have been asked is half of answering it.

It does not mean administrative law is a minor part of constitutional law. In terms of the number of disputes it governs, administrative law is far the larger of the two. Very few citizens are affected by a question of legislative competence; almost every citizen deals with an administrative authority.

It does not mean the English distinction can be carried into India unchanged. In England the standards of administrative behaviour came from the common law, so the two subjects had genuinely different sources. In India they share a source, which is why the overlap is greater here.

Quick revision

1. Constitutional law: the State at rest, structure, composition and powers of the organs of State. Administrative law: the State in motion, the exercise of power, procedure and remedies.
2. Constitutional law covers all three organs; administrative law is concerned mainly with the executive and the bodies it creates.
3. They overlap because in India the standards of administrative law are constitutional provisions: Articles 12, 14, 21, 32, 226, 227 and 311.
4. Two views: distinct branches with a common source, or one subject divided for convenience. For India the second, qualified, is the better answer.
5. Constitutional law is superior. Administrative law operates within constitutional limits and yields to them.
6. The greater overlap in India, compared with England, follows from the absence of an Administrative Procedure Act: the courts took their standards from Part III.

Test yourself

1. Distinguish constitutional law from administrative law. Constitutional law deals with the structure, composition and powers of the principal organs of the State and their relations to one another and to the citizen; administrative law deals with the exercise of power by administrative authorities, the procedure they must follow and the remedies available against them. Constitutional law has been described as the State at rest and administrative law as the State in motion. Constitutional law is general and concerns all three organs; administrative law is detailed and concerns mainly the executive. Constitutional law is superior, and a rule of administrative law that conflicts with the Constitution is void to that extent.

2. "In India the distinction between constitutional law and administrative law is one of convenience." Discuss. The statement is broadly correct. The two subjects share their source, because India has no Administrative Procedure Act and the courts derived the standards of administrative behaviour from Part III of the Constitution: non-arbitrariness from Article 14, fair procedure from Article 21, and the safeguards for civil servants from Article 311. Every remedy in administrative law is a constitutional remedy under Article 32 or Article 226, and whether a body is amenable to a writ at all turns on Article 12. The distinction nevertheless remains useful, because it tells a lawyer where to look: questions of legislative competence are answered from the Constitution's distribution of powers, questions of procedural fairness from the case law.

3. Give three examples of provisions that belong to both subjects. Article 311, which is in the Constitution but prescribes the procedure for dismissing a civil servant; Article 14, which is a fundamental right and also the standard by which administrative arbitrariness is judged; and Articles 32 and 226, which are constitutional provisions and also the source of every administrative law remedy. Article 12 may be added, since it determines which bodies are subject to writ jurisdiction.

4. Why is the overlap greater in India than in England? Because the sources differ. In England the standards of administrative behaviour were developed out of the common law, so administrative law had a source of its own distinct from constitutional law. In India there is no codified administrative procedure and no comparable body of common law, so the courts built the subject on constitutional provisions, principally Articles 14, 19 and 21, and on the writ jurisdiction conferred by Articles 32 and 226.

5. Which prevails if a rule of administrative law conflicts with a constitutional provision? The constitutional provision. Administrative law operates within the limits set by the Constitution. A rule, regulation or order inconsistent with a fundamental right is void under Article 13, and a statutory provision conferring administrative power is itself subject to the Constitution.

Second meaning: equality before the law

Every person, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary courts. There is no separate body of law for officials, and no separate set of courts to administer it. Dicey contrasted this with the French system of droit administratif, discussed in [How Administrative Law Grew: England, United States, France and India].

Criticism. Three, and all are examinable. First, Dicey's account of droit administratif was mistaken: the Conseil d'Etat is a genuine court and has often controlled the administration more effectively than the English courts. Second, complete equality never existed even in England: the Crown enjoyed immunities until the Crown Proceedings Act 1947, and judges, diplomats and members of Parliament have always had privileges. Third, in India there are express exceptions: Article 361 gives the President and the Governors immunity from court proceedings while in office, and Articles 105 and 194 give members of the legislatures privileges. Special tribunals for special classes of dispute are now universal.

Third meaning: the constitution is the result of the ordinary law of the land

In England the general principles of the constitution, such as the right to personal liberty, are the result of judicial decisions determining the rights of private persons in particular cases, rather than the source of those rights as in a country with a written constitution guaranteeing them.

Criticism. This is the meaning that has worn worst, and it is a description of English peculiarity rather than a general principle. It is also, on Dicey's own logic, the weaker arrangement: rights that rest only on judicial decisions can be taken away by an ordinary statute, whereas rights written into a constitution cannot. India shows why. The Indian citizen's rights are guaranteed by Part III and the remedy to enforce them is itself a fundamental right under Article 32, which is a stronger protection than the common law can offer.

The rule of law under the Indian Constitution

The Indian position is not Dicey's. It is stronger in some ways and expressly qualified in others, and this is the part of the chapter an Indian examiner cares about most.

Where the Constitution gives the rule of law legal force:

Where the Constitution qualifies it: Article 361 immunity for the President and Governors; Article 359, under which the President may suspend the right to move a court for enforcement of specified fundamental rights during an emergency; and the special provisions for preventive detention in Article 22(3) to (7).

The rule of law is part of the basic structure

This is the proposition that makes the rule of law a legal rule in India rather than a political ideal, and it comes from two cases.

Facts. Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461, was six writ petitions raising the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments of the Constitution. The lead petitioner was the head of a mutt in Kerala whose property was affected by the State's land reform legislation, which the Twenty-ninth Amendment had placed in the Ninth Schedule. The Twenty-fourth Amendment had been passed to reverse the earlier decision in Golak Nath by declaring that Parliament could amend any provision of the Constitution, including the fundamental rights. Thirteen judges heard the case, the largest bench ever assembled in India.

Held. The amending power in Article 368 does not extend to destroying or abrogating the basic structure or framework of the Constitution. Khanna J reasoned that an amendment necessarily contemplates that the Constitution is not abrogated but only changed, so that the old Constitution survives without loss of its identity; retaining the old Constitution means retaining its basic structure or framework; and the words "amendment of the Constitution", with all their wide sweep and amplitude, cannot have the effect of destroying or abrogating that basic structure. It would not be competent, under the garb of amendment, to turn a democratic government into a dictatorship or a hereditary monarchy, to abolish the two Houses, or to do away with the secular character of the State.

Why it matters here. It created the doctrine into which the rule of law was then placed. On its own it does not decide that the rule of law is part of the basic structure; that came next.

Facts. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, arose after the Allahabad High Court set aside the election of the Prime Minister for corrupt practice and appeals were pending in the Supreme Court. While they were pending, Parliament passed the Constitution (Thirty-ninth Amendment) Act 1975, inserting Article 329A, clause (4) of which provided that the pending appeals and the High Court's judgment were void and that the election of a person holding the office of Prime Minister or Speaker could not be called in question except before a body constituted by Parliament. Parliament also amended the election law and placed the amending Acts in the Ninth Schedule.

Held. Clauses (4) and (5) of Article 329A were unconstitutional and void as destroying the basic structure. The amending power under Article 368 is a constituent power and cannot be used to decide an individual dispute, which is the exercise of judicial power; and the provision withdrew the determination of the validity of a particular election from every judicial forum. The amending election Acts were upheld, and because they removed the basis of the High Court's findings retrospectively, the appeal succeeded on the merits.

Why it matters here. It is the case in which the rule of law, free and fair elections and the separation of powers were treated as features of the basic structure, and used to strike down a constitutional amendment. It is the clearest Indian illustration of a legislature attempting to decide a case about a named individual, which is the precise thing the rule of law forbids. It is discussed again in [Separation of Powers].

The lowest point, and its correction

An honest treatment of the rule of law in India has to include the case in which the Supreme Court abandoned it, and the case that put it right. A student who knows only the doctrine and not this episode does not understand what the doctrine is for.

Facts. Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, arose during the Emergency. A proclamation of emergency on the ground of internal disturbance was made on 25 June 1975, and on 27 June 1975 the President made an order under Article 359(1) suspending the right of any person to move any court for the enforcement of Articles 14, 21 and 22. Persons detained under the Maintenance of Internal Security Act 1971 filed habeas corpus petitions in the High Courts challenging their detention. The question was whether such a petition was maintainable at all while that order was in force.

Held. By a majority of four to one, no person had any locus standi to move a writ petition under Article 226 for habeas corpus, or any other writ, to challenge the legality of a detention order on the ground that it was not in compliance with the Act, or was illegal, or was vitiated by mala fides, whether factual or legal, or was based on extraneous considerations. Article 21 was said to be the sole repository of the right to life and personal liberty against the State, so that a claim to habeas corpus was an enforcement of Article 21 and was barred by the Presidential Order. Sections 16A(9) and 18 of the Act were upheld. Khanna J dissented, and his dissent, which cost him the Chief Justiceship, is the passage students are expected to know: the rule of law does not depend on Article 21 alone, and the State has no power to deprive a person of life or liberty without the authority of law even when the right to move a court is suspended.

Why it matters here. It is what the rule of law looks like when it fails. The consequence of holding that Article 21 was the sole repository of the right to life was that a detention which was admittedly illegal, or mala fide, could not be questioned by anybody in any court.

Facts. Justice K.S. Puttaswamy (Retd) v. Union of India, AIR 2017 SC 4161, was decided by a bench of nine judges on a reference asking whether the right to privacy is a fundamental right under the Constitution. In deciding it the Court had to consider the majority view in the Emergency detention case that Article 21 was the sole repository of the right to life and personal liberty, so that the right could be suspended altogether.

Held. The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III. As to the Emergency detention case, the Court said in terms that its decision must be and is accordingly overruled, and it also overruled the decision that had followed it. The Court noted that it had already been said in an earlier decision that the restrictive reading of the right to life and liberty in the Emergency case stood impliedly overruled by later decisions.

Why it matters here. It is the express, dated authority that the Emergency decision is no longer law. A chapter or an answer that describes that case without saying it has been overruled is teaching a position abandoned in 2017.

A worked example

The Commissioner of Police issues an order prohibiting a named journalist, Farida Sheikh, from entering a district for six months. There is a statute empowering the Commissioner to make such an order where he is satisfied that a person's presence is likely to cause a breach of the peace. Farida is given no notice and no reasons, and the order recites only the statutory words.

Test the order against the rule of law, meaning by meaning.

Supremacy of law. Is there a law authorising the order? Yes. Would there be a breach if there were none? Yes, and this is the first question in every administrative law problem: show the power.

No arbitrary power. The statute confers discretion, which is permissible. But the discretion must be exercised on material, for the purpose for which it was given, and on relevant considerations. An order made because the journalist has criticised the Commissioner is made for an improper purpose and is void: [Grounds of Judicial Review: Abuse of Discretion].

Equality before the law. If other journalists in the same position are not restrained, Article 14 is engaged.

Fair procedure. Article 21 covers freedom of movement as an aspect of personal liberty, and a procedure that is fair, just and reasonable would ordinarily require notice and an opportunity to be heard, unless urgency excludes it: [Exceptions to the Principles of Natural Justice].

Remedy. Farida may move the High Court under Article 226 or the Supreme Court under Article 32.

Notice that the rule of law does not decide the case by itself. It generates the questions; the answers come from the doctrines in Modules II and III. That is exactly how the principle works in practice, and saying so is worth marks.

Distinctions worth having straight

What it does NOT mean

It does not mean the government may not have discretion. Dicey's first meaning taken literally would make the welfare State impossible. The modern rule is that discretion must be conferred by law, exercised for its proper purpose and subject to review.

It does not mean everybody is treated identically. Article 14 permits reasonable classification. The rule of law forbids arbitrary distinctions, not all distinctions.

It does not mean the rule of law is only a moral idea in India. It is a legal rule with three legal consequences: laws inconsistent with fundamental rights are void under Article 13; arbitrary State action is void under Article 14; and a constitutional amendment that destroys the rule of law can be struck down as violating the basic structure.

Quick revision

1. Dicey's three meanings: supremacy of law as against arbitrary power; equality before the law and the ordinary courts; and the constitution as the result of the ordinary law.
2. Criticisms: discretion is unavoidable in a welfare State; equality was never absolute, and Article 361 proves it in India; the third meaning describes English peculiarity and is weaker than a written guarantee.
3. Dicey misunderstood droit administratif.
4. Indian foundations: Articles 13, 14, 20, 21, 22, 32, 226 and an independent judiciary. Qualifications: Articles 359, 361 and preventive detention.
5. Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461: the amending power cannot destroy the basic structure.
6. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299: clauses (4) and (5) of Article 329A struck down; rule of law and separation of powers treated as basic features.
7. Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207: the low point, four to one, Khanna J dissenting.
8. Justice K.S. Puttaswamy (Retd) v. Union of India, AIR 2017 SC 4161: that case is expressly overruled.
9. Rule of law is not rule by law.

Test yourself

1. Explain Dicey's three meanings of the rule of law and criticise each. First, supremacy of law: no one is punished except for a distinct breach of law established before the ordinary courts, and wide discretionary power is inconsistent with the rule of law. The criticism is that a welfare State cannot work without discretion; the modern answer is to control discretion rather than abolish it. Second, equality before the law: everyone whatever his rank is subject to the ordinary law and the ordinary courts. The criticism is that Dicey misdescribed droit administratif, that the Crown itself had immunities until 1947, and that in India Article 361 gives the President and Governors immunity. Third, the constitution as the result of the ordinary law: rights come from judicial decisions rather than from a written guarantee. The criticism is that this describes an English peculiarity, and that rights resting only on decisions are weaker than rights entrenched in a constitution, as Part III and Article 32 show.

2. Discuss the rule of law under the Indian Constitution. The rule of law in India is a legal rule with constitutional force. Article 13 voids any law, including delegated legislation, inconsistent with fundamental rights. Article 14 guarantees equality before the law and has been read as a guarantee against arbitrariness. Articles 20, 21 and 22 protect against conviction without law and deprivation of liberty without a fair procedure. Articles 32 and 226 supply the remedy, and Article 32 is itself a fundamental right. An independent judiciary is secured by Articles 50, 124 and 217. It is qualified by Article 361, by Article 359 and by preventive detention. Beyond all this, it forms part of the basic structure, so that even a constitutional amendment which destroys it may be struck down, as clauses (4) and (5) of Article 329A were in Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.

3. "The Emergency showed the limits of the rule of law in India." Comment. In Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, the Supreme Court held by four to one that after the Presidential Order under Article 359(1) no person had locus standi to move any court for habeas corpus, even to argue that a detention was illegal or mala fide, because Article 21 was the sole repository of the right to life and personal liberty. The practical consequence was that an admittedly unlawful detention could not be questioned anywhere. Khanna J dissented. The decision was expressly overruled in Justice K.S. Puttaswamy (Retd) v. Union of India, AIR 2017 SC 4161. The episode shows both that the rule of law can fail when the courts do not enforce it and that the constitutional structure allowed the failure to be corrected.

4. Distinguish the rule of law from rule by law. Rule by law requires only that the government act through legal forms, and is satisfied by any tyranny that legislates. The rule of law requires in addition that the law meet certain standards, that it be general, certain, prospective and administered by independent courts, and that the government itself be subject to it. In India the difference is enforced by Article 14, which strikes down arbitrary laws and actions, and by the basic structure doctrine.

5. Is administrative discretion inconsistent with the rule of law? Not in the modern understanding, though it was on Dicey's first meaning. A welfare State must confer discretion, because no statute can provide in advance for every case. Discretion is consistent with the rule of law where it is conferred by law, confined to the purpose for which it was conferred, exercised on relevant considerations and on material, and subject to judicial review. It becomes inconsistent when it is unguided, unreviewable, or exercised for a purpose other than the one for which it was given.

The United States: strict separation

The Constitution of 1787 is built on the doctrine. Article I vests all legislative powers granted in Congress, Article II vests the executive power in the President, and Article III vests the judicial power in the Supreme Court and such inferior courts as Congress establishes.

The consequences are real and are worth stating precisely.

• The President is not a member of Congress and neither are the Secretaries. A minister cannot sit in the legislature, which is the opposite of the position in India.
• The President cannot dissolve Congress, and Congress cannot remove the President except by impeachment.
• The non-delegation doctrine follows from Article I: since legislative power is vested in Congress, Congress may not give it away. American courts require the legislature to lay down an intelligible principle for the delegate to follow.
• Judges are appointed for life and cannot be removed except by impeachment.

Even there the separation is not complete, and the qualification is examinable. The system is one of checks and balances: the President has a veto over legislation, which is a legislative act; the Senate confirms appointments and ratifies treaties, which is an executive act; and the courts exercise judicial review over both, which is a check no other constitution had at the time. So the American doctrine separates the organs and then deliberately makes each dependent on the others.

England: no formal separation at all

England has the doctrine in substance for the judiciary and almost nowhere else.

• The executive sits in the legislature. By convention the Prime Minister and ministers are members of Parliament, and a government exists only so long as it commands the confidence of the House of Commons. Fusion, not separation, is the organising idea.
• Parliament is sovereign, so there is no question of the courts striking down an Act.
• Until 2009 the highest court was a committee of the House of Lords, and the Lord Chancellor was simultaneously a minister, the speaker of a legislative chamber and the head of the judiciary. The Constitutional Reform Act 2005 ended that, created a separate Supreme Court and reformed the office, so judicial independence is now structurally secured.

The English answer is therefore: separate the judiciary, fuse the legislature and the executive, and rely on political accountability and judicial review of executive action for the rest.

India: the modified doctrine

This is the part the examiner is really asking about, and the answer has two halves that must both be given: the doctrine is not applied rigidly, and yet it is part of the basic structure.

Where the Constitution departs from the doctrine

Where the Constitution insists on it

• Article 50 directs the State to separate the judiciary from the executive in the public services. It is a Directive Principle, so it is not enforceable, but it states the policy.
• Articles 121 and 211 forbid discussion in Parliament and in a State legislature of the conduct of a judge in the discharge of his duties.
• Articles 122 and 212 forbid the courts to inquire into the validity of proceedings in the legislature on the ground of irregularity of procedure.
• Article 361 protects the President and Governors from court proceedings while in office.

Read together, those provisions do exactly what the classical doctrine asks for at the point where it matters most: they keep the legislature out of judicial business and the courts out of legislative business.

What the Supreme Court has held

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, was a petition under Article 32 by six persons who prepared, printed, published and sold school text books in Punjab. They complained that the Education Department, pursuing a policy of nationalising text books, had issued notifications from 1950 onwards which restricted their right to carry on business under Article 19(1)(g) and had practically driven them out of the trade. Their argument was that such restrictions could not be imposed by executive orders without legislation.

Held. Mukherjea CJ said that it may not be possible to frame an exhaustive definition of what an executive function means, and that ordinarily executive power connotes the residue of governmental functions remaining after legislative and judicial functions are taken away. He then stated the proposition that is quoted in every later case: the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity, but the functions of the different branches of Government have been sufficiently differentiated, so that our Constitution does not contemplate assumption by one organ of functions that essentially belong to another. The executive may exercise subordinate legislative power when the legislature delegates it, and judicial functions in a limited way when empowered, but can never act against the Constitution or any law; and it does not follow that a law must exist before the executive can act. The petitions were dismissed.

Why it matters. It is the authority for the Indian position in a single sentence, and it does two jobs at once: it defines executive power as the residue, and it states the modified doctrine.

Facts. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, arose after the Allahabad High Court set aside the Prime Minister's election for corrupt practice and appeals were pending. Parliament then passed the Constitution (Thirty-ninth Amendment) Act 1975, inserting Article 329A, clause (4) of which declared the pending appeals and the High Court's judgment void and provided that the election of a person holding the office of Prime Minister or Speaker could not be called in question except before a body constituted by Parliament.

Held. Clauses (4) and (5) of Article 329A were unconstitutional and void as destroying the basic structure. The amending power under Article 368 is a constituent power and cannot be used to decide an individual dispute, because deciding a dispute is the exercise of judicial power; and the clause withdrew the validity of a particular election from every judicial forum.

Why it matters here. It is the case in which separation of powers was treated as a feature of the basic structure and used to strike down a constitutional amendment. It is also the clearest illustration of the vice the doctrine exists to prevent: a legislature deciding a case about a named person.

Facts. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, concerned admissions to the two government medical colleges in Jammu and Kashmir for 1988-89. In an earlier case the High Court had directed the State to entrust selection to a statutory independent body and, until that was done, to a body free from executive influence. The State issued a procedure order in 1987 constituting a Competent Authority. Unsuccessful candidates challenged the selection as violating those directions, and the High Court allowed their petitions and issued a mandamus.

Held. Although separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers meticulously defined the functions of the various organs, and the legislature, executive and judiciary have to function within their own spheres. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and the executive; but while their power is subject to judicial restraint, the only check on the court's own power is the self imposed discipline of judicial restraint. In exercising judicial review of administrative action the court is not an appellate authority, and the Constitution does not permit it to direct or advise the executive in matters of policy, or to sermonise on a matter within the sphere of the legislature or executive, provided those authorities stay within their constitutional and statutory limits. The High Court's direction to constitute a statutory independent body was in substance a direction to the legislature to enact a law, which the court could not give.

Why it matters. It is the modern statement of the Indian position and the one that shows what the doctrine forbids a court to do. Most students can say that a court may strike down executive action; far fewer can say that a court may not direct the legislature to legislate.

Facts. In re The Delhi Laws Act, 1912, AIR 1951 SC 332, was a reference by the President under Article 143(1) asking whether three provisions were valid: section 7 of the Delhi Laws Act 1912 and section 2 of the Ajmer-Merwara (Extension of Laws) Act 1947, each allowing the Government to extend to a territory, with such restrictions and modifications as it thought fit, any enactment in force elsewhere; and section 2 of the Part C States (Laws) Act 1950, which did the same and further allowed an extended enactment to repeal or amend any corresponding law already applicable.

Held. By a majority, the first two provisions were wholly valid. The later portion of section 2 of the Part C States (Laws) Act 1950, allowing the repeal or amendment of a law other than a Central Act already applicable, was held ultra vires. Kania CJ stated the test that has governed ever since: the essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct, and those essentials are the characteristics of a legislature itself; once the legislature has made its law, the detail of working it out may be left to a subordinate agency, and that kind of delegation is different in essence because it does not hand over the power to determine policy. An abdication by a legislature need not be complete effacement; it may be partial.

Why it matters here. It is where the Indian compromise on separation of powers was actually worked out. The legislature may delegate, because a rigid separation is impossible, but it may not delegate the essential legislative function, because that would be abdication. The case is treated in full in [Constitutional Validity of Delegated Legislation].

The three systems compared

A worked example

The State legislature passes an Act constituting a Rent Authority, empowering it to make rules fixing standard rents, to decide disputes between landlords and tenants, and to evict a tenant who defaults. The Housing Secretary is made the Authority.

• The rule making power is a legislative function performed by the executive. It is valid so long as the Act lays down the policy and does not delegate the essential legislative function: In re The Delhi Laws Act, 1912, AIR 1951 SC 332.
• Deciding disputes is a judicial function performed by the executive. It is valid, because Articles 323A and 323B and the general practice permit adjudication outside the courts, but the Authority must act judicially: [Distinguishing Legislative, Judicial, Quasi-judicial and Administrative Functions] and [Audi Alteram Partem].
• Eviction is an executive act.
• If the Act said that the Authority's decisions "shall not be called in question in any court", that provision runs into the basic structure, because judicial review is part of it: [The Working of Tribunals: the Administrative Tribunals Act 1985].
• If the legislature passed a resolution declaring that Mr Karve's tenancy specifically was terminated, that would be the legislature exercising judicial power over a named individual, which is what Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, struck down.

One statute, and the doctrine bites at four different points with four different answers. That is the shape of a good exam answer on this topic.

What it does NOT mean

It does not mean India rejects the doctrine. A common error is to write that India does not follow separation of powers. India does not follow it rigidly. The functions are demarcated, the courts enforce the demarcation, and the doctrine is part of the basic structure.

It does not mean the three organs never touch. They constantly do, and the Constitution provides for it: ordinances, delegated legislation, contempt powers, the removal of judges and the advisory jurisdiction are all overlaps written into the text.

It does not mean a court may correct every failure of the other organs. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that a court may not direct the legislature to enact a law or advise the executive on policy.

Quick revision

1. Montesquieu, The Spirit of the Laws, 1748. Three limbs: function, personnel, non-interference.
2. United States: strict separation with checks and balances; ministers are not legislators; non-delegation doctrine and intelligible principle.
3. England: no formal separation; executive sits in the legislature; Parliament is sovereign; judicial independence secured by the Constitutional Reform Act 2005.
4. India: modified. Departures include Articles 75(3), 164(2), 123, 213, 105, 194, 124(4), 145, 146, 143, 323A and 323B. Insistence in Articles 50, 121, 122, 211, 212 and 361.
5. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: executive power is the residue; the doctrine is not recognised in absolute rigidity, but no organ may assume functions essentially belonging to another.
6. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299: separation of powers is part of the basic structure; Article 329A(4) and (5) struck down.
7. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899: the court is not an appellate authority and may not direct the legislature to legislate or advise the executive on policy.
8. In re The Delhi Laws Act, 1912, AIR 1951 SC 332: the essential legislative function, the determination of policy and its formulation as a rule of conduct, may not be delegated.

Test yourself

1. Explain the doctrine of separation of powers and examine its application in India. The doctrine, stated classically by Montesquieu in 1748, requires that the legislative, executive and judicial functions be vested in three separate organs, that no person be a member of more than one, and that no organ interfere with another. India applies it in a modified form. There are many textual departures: ministers must be members of the legislature under Articles 75(3) and 164(2); the President and Governors legislate by ordinance under Articles 123 and 213; the executive makes delegated legislation; the legislature punishes for contempt under Articles 105 and 194 and removes judges under Article 124(4); the judiciary makes rules under Articles 145 and 146 and advises under Article 143. But the Constitution insists on the doctrine where it matters: Article 50 directs separation of the judiciary from the executive, and Articles 121, 122, 211 and 212 keep each organ out of the other's proceedings. The Supreme Court's position is that stated in Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: the doctrine is not recognised in its absolute rigidity, but the functions are sufficiently differentiated that no organ may assume functions essentially belonging to another. In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, it was held to be part of the basic structure.

2. Compare the doctrine in the United States and in England. In the United States it is a rule of the written Constitution: Articles I, II and III vest the three powers separately, ministers cannot sit in Congress, judges hold office for life, and Congress may not delegate legislative power without laying down an intelligible principle. The separation is qualified by a deliberate system of checks and balances, including the presidential veto, Senate confirmation of appointments and judicial review. In England there is no formal separation at all between the legislature and the executive: ministers sit in Parliament and the government survives only while it commands the confidence of the Commons, and Parliament is sovereign, so there is no judicial review of legislation. England does secure judicial independence, and did so structurally by the Constitutional Reform Act 2005.

3. How does the doctrine of separation of powers affect delegated legislation? On a strict view, delegation is unconstitutional: if legislative power is vested in the legislature it cannot be given away. India resolved the conflict in In re The Delhi Laws Act, 1912, AIR 1951 SC 332, by distinguishing between the essential legislative function, which is the determination of policy and its formulation as a rule of conduct and which may not be delegated, and the working out of detail, which may. The United States reached a comparable result through the requirement of an intelligible principle.

4. Can an Indian court direct the legislature to make a law? No. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that although the doctrine is not applied in absolute rigidity, the organs must function within their own spheres, that in judicial review the court is not an appellate authority, and that the Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise on matters within the legislature's sphere. On the facts, the High Court's direction that a statutory independent body be constituted amounted to a direction to legislate, and could not be given.

5. "India follows the doctrine of separation of powers only in a modified form." Explain with provisions. The statement is accurate. Departures written into the Constitution include ministers sitting in the legislature (Articles 75(3), 164(2)), ordinance-making by the executive (Articles 123, 213), legislative punishment for contempt (Articles 105, 194), removal of judges by the legislature (Article 124(4)), rule-making and establishment powers of the courts (Articles 145, 146, 229), the advisory jurisdiction (Article 143), and adjudication by tribunals (Articles 323A, 323B). Insistence on the doctrine appears in Article 50, and in Articles 121, 122, 211, 212 and 361. The judicial formulation is that of Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, and its status as part of the basic structure comes from Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.

The whole of Module II's first half is about this function: how it may lawfully be conferred, what its limits are and how it is controlled.

2. The judicial or quasi-judicial function, or adjudication

The authority determines a question affecting the rights of an identified person, on the basis of facts found and law applied.

A purely judicial function is what a court performs: there are two contending parties, a dispute of fact or law between them, the decision is on evidence, and the body is bound to decide according to law.

A quasi-judicial function is performed by a body which is not a court but which is under a duty to act judicially. The word "quasi" is Latin for "as if". The classical Indian test comes from Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222.

The marks of a quasi-judicial act are: an identified person whose rights or interests are affected, a decision reached after considering the matter, and an element of discretion exercised on legal principle rather than pure policy.

3. The administrative or executive function

The authority acts, in furtherance of policy, without either laying down a general rule or determining a dispute. Examples: making an appointment, granting or withholding a subsidy, requisitioning property, transferring an officer, issuing a departmental circular, launching a scheme.

The marks of an administrative act are: it is based on policy and expediency rather than on the application of legal rules to found facts; it need not be preceded by any lis; and it usually affects an individual.

The fourth: the ministerial function

Most writers add a fourth, and MU's reading list includes writers who do, so it belongs in an answer.

A ministerial function is one in which the authority has no discretion at all: the law tells it what to do and it must do it, on the existence of a stated fact. Making an entry in a register, issuing a certificate on production of the prescribed documents, paying a sum the statute directs to be paid. There is nothing to challenge except a refusal to act, and the remedy for that is mandamus.

A worked example: one authority, four functions in a week

The Municipal Commissioner of a city has powers under a Municipal Act.

Monday. He makes bye laws prescribing the hours during which loudspeakers may be used in the city. General, prospective, applying to everybody. Legislative.

Tuesday. He decides an objection by Mr Fernandes that his property has been wrongly assessed to property tax, after hearing him and his valuer. An identified person, rights affected, decision after considering evidence. Quasi-judicial.

Wednesday. He decides to build the new market on the eastern plot rather than the western one, because the eastern plot is nearer the highway. Policy, expediency, no lis. Administrative.

Thursday. He signs the birth certificate of a child whose birth has been registered, the statute providing that the certificate shall be issued on application. No discretion at all. Ministerial.

Friday. He cancels the licence of a hawker for repeated obstruction. Which is it? An identified person and rights affected point to quasi-judicial; the fact that he acts on inspection reports rather than on a hearing between contending parties points to administrative. The answer since 1969 is that the label matters much less than it used to, because either way he must act fairly and give the hawker a chance to be heard. That is the point of the next chapter.

The classification is not watertight, and the courts have said so

An answer that presents the three categories as sharp boxes will lose marks, because the leading Indian case says the opposite.

Facts. A.K. Kraipak v. Union of India, AIR 1970 SC 150, concerned selection to the Indian Forest Service from officers of the Jammu and Kashmir forest department. A Special Selection Board was constituted, and one of its members was the Acting Chief Conservator of Forests, who was himself a candidate and who had obtained his acting post by superseding another Conservator whose appeal was pending. He withdrew when his own name was considered, but sat when his rivals' claims were considered and when the order of preference was settled. He was placed at the top of the list; three of his rivals were left out. The list went to the Home Ministry and then to the Union Public Service Commission, which examined the records afresh, and the Government notified it. Those left out petitioned under Article 32.

Held. The rules of natural justice operate in areas not covered by any validly made law: they do not supplant the law but supplement it. There is no reason why they should not apply to administrative proceedings as well as quasi-judicial ones, especially as it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones, and an unjust decision in an administrative enquiry may have a more far reaching effect than one in a quasi-judicial enquiry. What particular rule of natural justice applies depends on the facts, the framework of the law, and the constitution of the body concerned. The requirement that enquiries be held in good faith and without bias is part of natural justice. On the facts there was a conflict between interest and duty and the member was a judge in his own cause; and although he did not sit when his own name was considered, his participation when his rivals were considered and when the list was prepared must have influenced the result, because in group discussion each member influences the others in a subtle way without their being aware of it. The selection was not made fairly and justly.

Why it matters here. It is the case that broke the classification open. Before it, a decision had to be shown to be quasi-judicial before natural justice would attach. After it, the duty to act fairly attaches to administrative action too, and the energy that used to go into classifying a function goes instead into asking what fairness requires in the particular case.

What survives of the classification after 1969

Something important survives, and a strong answer says what.

1. The legislative and non-legislative divide still matters a great deal. Natural justice does not attach to rule making, because a rule affects a class and not an identified person. When a Government makes a rule it does not have to hear everybody the rule will bind. That distinction is alive and it decides real cases.
2. The remedy still follows the classification. Certiorari quashes a determination; mandamus commands the performance of a duty; the choice between them still turns on what kind of act is complained of: [Judicial Remedies against Administrative Arbitrariness: the Writs].
3. The duty to give reasons attaches more strongly to a determination than to a policy decision.
4. What has faded is the natural justice consequence of the line between quasi-judicial and administrative, which is exactly what Kraipak decided.

Distinctions in one table

What it does NOT mean

It does not mean a function has a fixed label for all purposes. The same act may be treated as administrative for one purpose and as attracting a duty of fairness for another. The question is always what consequence is being argued for.

It does not mean administrative action escapes control. That was the position the classification produced before 1969 and it is precisely what Kraipak rejected.

It does not mean quasi-judicial bodies are courts. They are not, and the difference is set out in [Tribunal and Court Distinguished].

Quick revision

1. Three functions: legislative, or rule making; judicial and quasi-judicial, or adjudication; administrative, or executive action. A fourth, ministerial, has no discretion.
2. Legislative: general, prospective, no identified person. Quasi-judicial: identified person, rights affected, duty to act judicially. Administrative: policy and expediency, no lis. Ministerial: no choice.
3. The classification matters because natural justice, reasons, the choice of writ and the standard of review all depend on it.
4. Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222, supplied the test of the duty to act judicially.
5. A.K. Kraipak v. Union of India, AIR 1970 SC 150, held that the line between administrative and quasi-judicial enquiries is not easy to draw and that natural justice applies to administrative proceedings too.
6. What survives: legislative against non-legislative is still decisive; the remedy still follows the classification; reasons attach more strongly to determinations.

Test yourself

1. Classify the functions of administrative authorities and explain the importance of the classification. They are classified as legislative, where the authority makes a general rule for the future applying to a class; judicial or quasi-judicial, where it determines a question affecting the rights of an identified person after considering the matter, being under a duty to act judicially; and administrative or executive, where it acts on grounds of policy and expediency without laying down a rule or determining a dispute. A fourth category, ministerial, covers acts in which there is no discretion at all. The classification is important because different consequences follow: natural justice and reasons ordinarily attach to a quasi-judicial determination but not to rule making; certiorari and prohibition lie against a determination while mandamus lies to compel the performance of a duty; and the standard of review differs.

2. Has the classification lost its importance? Give reasons. It has lost part of it. Before A.K. Kraipak v. Union of India, AIR 1970 SC 150, everything turned on classifying a decision as quasi-judicial, because natural justice attached only there. Kraipak held that the line between administrative and quasi-judicial enquiries is not easy to draw and that natural justice applies to administrative proceedings as well, so a duty to act fairly now attaches to administrative action. What survives is significant: the divide between legislative and non-legislative still decides whether a hearing is required at all, the choice of writ still follows the nature of the act, and the duty to give reasons attaches more strongly to a determination than to a policy decision.

3. Distinguish a ministerial function from an administrative function. In a ministerial function the authority has no discretion: the statute directs what is to be done on the existence of a stated fact, as where a certificate must be issued on production of prescribed documents. In an administrative function the authority has a choice and exercises it on considerations of policy and expediency. The consequence is that a ministerial act can be compelled by mandamus and there is nothing else to review, whereas an administrative act can be reviewed on the grounds applicable to discretion, such as improper purpose or irrelevant considerations.

4. A Municipal Commissioner makes bye laws on the use of loudspeakers, and separately cancels one hawker's licence. Classify each and state the consequences. The bye laws are a legislative function: a general rule, for the future, binding a class, with no identified person whose case is determined. Natural justice does not ordinarily apply, and validity is tested by the rules on delegated legislation, in particular whether the bye laws are within the parent Act and reasonable. Cancelling one hawker's licence affects an identified person's rights and is at least administrative and arguably quasi-judicial; on either view, after A.K. Kraipak v. Union of India, AIR 1970 SC 150, the Commissioner must act fairly, which means giving the hawker notice of what is alleged and an opportunity to answer, and ordinarily giving reasons.

5. What is meant by a quasi-judicial function? A function performed by an authority which is not a court but which, in determining a question affecting the rights of an identified person, is under a duty to act judicially. The test in Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222, is whether the law under which the authority decides itself requires a judicial approach; it is not necessary that there be a formal lis, or a right to examine and cross-examine witnesses, and the mere fact that an executive authority has to determine an objective fact before exercising a power does not make the determination judicial.

Why it matters

Because natural justice attaches to the second and not to the first. A Government fixing prices need not hear every manufacturer; a Government ordering one manufacturer to refund must hear it. This is the single most useful consequence in the whole chapter.

Distinction 2: legislative and executive functions

This is the harder of the first two, and students confuse it with the first.

The test

A legislative act lays down a new general rule that binds; an executive act applies or carries out an existing rule, or acts on policy where the law leaves a choice.

The Indian starting point is Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.

Facts. Six persons who prepared, printed, published and sold school text books in Punjab petitioned under Article 32, complaining that the Education Department, pursuing a policy of nationalising text books, had issued a series of notifications from 1950 which restricted their right under Article 19(1)(g) and practically drove them out of the trade. They said such restrictions could not be imposed by executive orders without legislation.

Held. Mukherjea CJ said it may not be possible to frame an exhaustive definition of an executive function, and that ordinarily executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not recognised the doctrine of separation of powers in its absolute rigidity, but the functions of the branches are sufficiently differentiated that no organ may assume functions essentially belonging to another. The executive may exercise subordinate legislative power when the legislature delegates it, and judicial functions in a limited way when empowered, but can never go against the Constitution or any law. It does not follow that a law must already exist before the executive can act, nor is executive power limited to carrying out existing laws. The petitions were dismissed.

Why it matters here. It supplies the definition of the executive function by subtraction, and it establishes that the executive may act without a prior statute so long as it does not infringe rights or contravene a law. That last point is the one students miss: an executive act is not invalid merely because no statute authorised it.

The practical indicators

The consequence, treated in [Sources of Administrative Law], is that a circular cannot do what a rule can. If the Act requires something to be done "by rules made under this section", a circular will not do.

Distinction 3: judicial and quasi-judicial functions

The test

A judicial function is performed by a court: there is a lis, meaning a dispute between two contending parties, the court is bound to decide it according to law on evidence, and it has the trappings of a court.

A quasi-judicial function is performed by a body outside the judicial hierarchy which is nevertheless under a duty to act judicially in determining a question affecting rights.

The Indian authority on the duty to act judicially is Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222.

Facts. Section 3 of the Bombay Land Requisition Ordinance 1947 provided that if in the opinion of the Provincial Government it was necessary or expedient to do so, the Government might by order in writing requisition any land for any public purpose. The first respondent, a refugee from Sind, took an assignment of tenancy rights in a Bombay flat and went into possession. A few days later the Government requisitioned the flat under section 3, allotted it to another refugee and directed an Inspector to take possession. The High Court issued a writ of certiorari against the Province of Bombay, and a Division Bench confirmed it on appeal.

Held. By the Full Court, certiorari lies whenever a body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, acts in excess of that authority; it does not lie against an order that is administrative or ministerial. By the majority of four to two, on a proper construction of section 3 the Government's decision that the property was required for a public purpose was an administrative act and not a judicial or quasi-judicial decision, so the High Court had no jurisdiction to issue certiorari. Kania CJ said that merely because an executive authority has to determine objective facts affecting rights as a preliminary step to discharging an executive function, it does not follow that it must determine them judicially, and that the true test is whether the law under which the authority is making a decision itself requires a judicial approach. It cannot be laid down broadly that there must be a proposition and an opposition, or a lis, or a right to examine and cross-examine witnesses. Fazl Ali J put it that the mere fact that an executive authority has to decide something does not make the decision judicial: it is the manner in which the decision has to be arrived at that makes the difference, and the real test is whether there is a duty to decide judicially.

Why it matters here. It is the leading Indian statement of the test, and it shows the test being applied to defeat the claim. It also shows how much turned on the classification before 1969: because the act was administrative, certiorari did not lie at all, and the citizen had no remedy on that route.

The indicators

Then the line moved

Everything above describes the position as it was worked out before 1969. The classification was decisive, and a great deal of litigation was spent on it, because natural justice attached only to the quasi-judicial box.

Facts. A.K. Kraipak v. Union of India, AIR 1970 SC 150, concerned a Special Selection Board constituted to select officers of the Jammu and Kashmir forest department for the Indian Forest Service. One member of the Board was the Acting Chief Conservator of Forests, who was himself a candidate and had obtained his acting post by superseding another Conservator whose appeal against supersession was pending. He withdrew when his own name was considered but sat when his rivals' claims were considered and when the order of preference was settled. His name came top; three rivals were left out. The list went to the Home Ministry and then to the Union Public Service Commission, which examined the records afresh, and the Government notified it. Those left out petitioned under Article 32.

Held. The rules of natural justice operate in areas not covered by any validly made law and supplement rather than supplant it. There was no reason why they should not apply to administrative proceedings as well as quasi-judicial ones, especially because it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones, and an unjust decision in an administrative enquiry may have a more far reaching effect than one in a quasi-judicial enquiry. What rule of natural justice applies in a given case depends on the facts, the framework of the law under which the enquiry is held, and the constitution of the body. The rule that enquiries be held in good faith and without bias is part of natural justice. On the facts there was a conflict between interest and duty, and the member was a judge in his own cause; his participation when his rivals were considered and when the list was prepared must have had an impact, because in group discussion each member influences the others subtly without their being aware of it. The selection had not been made fairly and justly.

Why it matters here. It is the case that made the third distinction much less important than it had been. The question in a modern case is not "was this quasi-judicial?" but "what does fairness require here?"

A worked example: sorting one file

The State Electricity Regulatory Commission does four things about a distribution company, Konkan Power Limited.

1. It issues regulations prescribing the standards of supply that all distribution licensees must meet. Prospective, general, expressed by description. Legislative. Konkan Power cannot complain that it was not individually heard, though the statute may require consultation.
2. It issues a tariff order fixing the tariff Konkan Power may charge for the coming year, after a public hearing at which consumers and the company were heard. Here the correct answer is that it has elements of both: it applies to one identified licensee and follows a hearing, so it is at least quasi-judicial in the way it must be made, even though tariff fixing is often described as legislative in character. The safe treatment is to say that whatever the label, the duty to act fairly and to give reasons attaches, on the authority of A.K. Kraipak v. Union of India, AIR 1970 SC 150.
3. It decides a complaint by a consumer that Konkan Power overcharged him last year, after hearing both. Named parties, past facts, an existing rule applied. Quasi-judicial, and the full rules of natural justice apply.
4. It directs its own staff to inspect all substations in the district before the monsoon. Internal, policy, no rights determined. Administrative, and nobody is entitled to be heard.

What beginners get wrong

Thinking the number of people affected decides it. It does not. What decides it is whether the persons affected are described as a class or identified individually.

Thinking a body with no lis cannot be quasi-judicial. Kusaldas Advani says expressly that a lis is not necessary; the test is whether the law requires a judicial approach.

Thinking that after Kraipak the classification is dead. It is not. It still decides whether a hearing is owed at all in rule making, and it still decides which writ to ask for.

Thinking an executive act needs a statute behind it. Ram Jawaya Kapur holds otherwise: the executive may act without prior legislation so long as it does not infringe rights or contravene a law.

Quick revision

1. Legislative against judicial: rule for the future for a class, against determination of an existing dispute between named parties on evidence.
2. Class by description is legislative even if it contains one member; identification by name is not.
3. Legislative against executive: a new binding general rule, against carrying policy or an existing rule into effect. Executive power is the residue: Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.
4. Delegated legislation binds citizens and courts; an administrative circular binds only the administration.
5. Judicial against quasi-judicial: a court deciding a lis according to law, against a body outside the hierarchy under a duty to act judicially.
6. Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222: the true test is whether the law under which the authority decides requires a judicial approach; a lis is not necessary; certiorari does not lie against a purely administrative order.
7. A.K. Kraipak v. Union of India, AIR 1970 SC 150: the line between administrative and quasi-judicial is not easy to draw and natural justice applies to administrative enquiries too.

Test yourself

1. Distinguish between legislative and judicial functions. A legislative function lays down a general rule of conduct for the future, binding a class of persons defined by description, made on grounds of policy, without hearing those affected and without a duty to give reasons. A judicial function determines an existing dispute between named parties by applying an existing rule to facts found on evidence, after hearing them, and ordinarily with reasons. The consequence is that natural justice attaches to the second and not ordinarily to the first, and that a rule is challenged as ultra vires the parent Act while a determination is quashed by certiorari. What matters is not the number of persons affected but whether they are defined by description or by identity.

2. Distinguish between legislative and executive functions. A legislative act creates a new general rule that binds citizens and courts as law; an executive act applies an existing rule or carries policy into effect. Executive power was defined in Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, as the residue of governmental functions remaining after legislative and judicial functions are taken away, and the Court held that the executive may act without a prior statute so long as it does not infringe rights or contravene any law. In practice the distinction shows itself in the difference between a rule made under a statutory rule making power, which must ordinarily be published and which binds everyone, and an administrative circular, which binds only the administration internally.

3. Distinguish between judicial and quasi-judicial functions. A judicial function is performed by a court, which decides a lis between contending parties according to law and on evidence and has the trappings of a court. A quasi-judicial function is performed by an authority outside the judicial hierarchy which is under a duty to act judicially in determining a question affecting rights; it is not bound by the law of evidence, it may take policy into account, and it has no contempt power unless one is conferred. The test of the duty to act judicially, from Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222, is whether the law under which the authority decides itself requires a judicial approach; a lis is not necessary, and the mere fact that an executive authority must find an objective fact before exercising a power does not make the finding judicial.

4. "The distinction between administrative and quasi-judicial functions has lost much of its significance." Discuss. The proposition is broadly correct and its source is A.K. Kraipak v. Union of India, AIR 1970 SC 150. Before it, the rules of natural justice attached only to quasi-judicial acts, so a litigant had to place the decision in that box or lose. The Court held that natural justice supplements rather than supplants the law, that it is not easy to draw the line demarcating administrative enquiries from quasi-judicial ones, and that an unjust decision in an administrative enquiry may have a more far reaching effect. The result is a general duty to act fairly. The distinction retains significance in three respects: the legislative and non-legislative divide still decides whether any hearing is owed, the appropriate writ still depends on the nature of the act, and the duty to give reasons is stronger for a determination than for a policy decision.

5. A Government notification fixes the maximum retail price of a medicine. A separate order directs one company to refund excess collections. Classify each. The notification is legislative: it is prospective, applies to a class defined by description, rests on policy, and no individual's case is determined, so those bound by it are not entitled to a hearing and it is challenged, if at all, as being outside the parent Act or unconstitutional. The order is quasi-judicial: it identifies a particular company, rests on past facts, and applies an existing rule to determine liability, so the company is entitled to notice, an opportunity to be heard and reasons, and the order may be quashed by certiorari if those are denied.

That third point is the constitutional hook for the whole of [Judicial Control over Delegated Legislation], and it should be quoted with the Article number.

Why the legislature delegates

The syllabus asks for the reasons for growth as a separate head. There are nine that are worth giving, and the best answers explain three or four properly rather than listing all nine.

1. Pressure on legislative time. A legislature sits for a limited number of days a year and must deal with the Budget, policy debates, questions and the great controversial Bills. If it also had to enact every technical detail, nothing would get through. Delegation lets Parliament settle policy and leave the working out to others.

2. Technicality of subject matter. The tolerable level of a pollutant, the design of an electrical installation, the standards for a drug trial, the capital adequacy of a bank: these require expertise that no legislature possesses. Members debate policy; engineers and pharmacologists write standards.

3. Flexibility. An Act can be amended only by the legislature, which may not be sitting. A rule can be amended in days. When a statute must respond to a changing market, a new disease or a fluctuating price, the detail has to be in a form that can move.

4. Emergency. In war, famine, flood or epidemic the executive must be able to act at once and to make general rules binding the whole population. Every modern emergency statute confers wide rule making power for that reason.

5. Experiment. A new administrative scheme can be tried out through rules, tested and altered without the political and procedural cost of amending an Act each time.

6. Unforeseen contingencies. However carefully a Bill is drafted, situations arise that nobody anticipated. A rule making power lets the gap be filled without waiting for an amending Act, and this is why so many Acts contain a power to remove difficulties.

7. Local variation. A single rule cannot suit Mumbai and a hill district. Bye law making power devolved on local authorities lets the detail follow local conditions.

8. Confidentiality and speed in some fields. Exchange control, taxation of commodities and import controls have to take effect the moment they are announced, because advance notice defeats them. The legislative process cannot deliver that.

9. The growth of the administrative State itself. This is the underlying reason and it is treated in [The Rise of the Administrative State]. Once the State takes on the functions of a welfare State, the volume of law required is beyond any legislature's capacity to enact directly.

The objections, and why the topic is controversial

An answer that gives only the reasons for growth has given half the topic. Delegated legislation has been criticised since it appeared, and the criticisms are what the controls in the next three chapters answer.

It is law made by people who are not elected. The rule maker is a department, not a legislature, and the citizen has no vote on it.

It escapes the scrutiny a Bill receives. A Bill is debated, is scrutinised in committee, is reported in the press and can be opposed. A rule is drafted in a department and published in a Gazette almost nobody reads.

Its volume is unmanageable. The quantity of delegated legislation vastly exceeds the quantity of primary legislation, and no legislature can supervise it all.

It may be badly drafted or obscure, because it is prepared quickly and by people whose training is administrative rather than legal.

It can be used to widen the executive's own power, especially through a Henry VIII clause, which is a provision empowering the executive to modify the Act itself. The name comes from the Statute of Proclamations of 1539, under which Henry VIII was empowered to legislate by proclamation, and it is treated in [Forms and Types of Delegated Legislation].

The Committee on Ministers' Powers, appointed in England under the chairmanship of the Earl of Donoughmore and reporting in 1932, was set up because of exactly these fears, which had been sharpened by Lord Hewart's book The New Despotism. Its conclusion is the one still generally accepted: delegated legislation is necessary and inevitable, and the answer is not to abolish it but to confine it and to control it. It recommended that the powers be clearly defined, that the exceptional powers such as Henry VIII clauses be used only where essential and for a limited period, and that both Houses have a committee to scrutinise the rules made.

A worked example

The Food Safety and Standards Act empowers the Food Authority to make regulations specifying the standards for articles of food, and the Central Government to make rules for carrying out the purposes of the Act.

Ask what would happen if there were no such power. Parliament would have to enact, in a statute, the permitted level of every additive in every food, and to amend that statute every time a scientific committee revised a figure. It would have to do the same for pesticide residues, for labelling and for packaging materials. Nothing else would ever be debated, and the standards would be years out of date by the time they were passed.

Now ask what could go wrong once the power exists. The Authority could set a standard so strict that it excludes small producers, which is a policy choice Parliament never made. It could exempt a category of producer without any basis, which is arbitrary under Article 14. It could make a regulation retrospective, taking away a right somebody had already acquired. It could make a regulation that contradicts the Act itself. Each of those is a ground on which the regulation can be attacked, and each is treated in [Judicial Control over Delegated Legislation].

That is the shape of the whole module: the power is necessary, and everything after it is about the limits.

Distinctions worth having straight

What it does NOT mean

It does not mean the executive can make law whenever it likes. Every rule needs a parent Act conferring the power, and it is valid only so far as it stays within it.

It does not mean delegated legislation is inferior law that a court may ignore. A valid rule binds a court exactly as an Act does.

It does not mean the legislature has surrendered its power. It may repeal the parent Act, amend the rule making power, or annul the rules where the Act provides a laying procedure: [Legislative Control over Delegated Legislation].

Quick revision

1. Delegated legislation: law made by an authority other than the legislature under a power conferred by an Act. Also called subordinate or subsidiary legislation.
2. Vocabulary: rule, regulation, bye law, order, notification, scheme. Parent Act, ultra vires, intra vires.
3. It is "law" within Article 13(3)(a), so it is void if inconsistent with a fundamental right.
4. Reasons for growth: pressure on legislative time, technicality, flexibility, emergency, experiment, unforeseen contingencies, local variation, the need for immediate effect, and the growth of the welfare State.
5. Criticisms: unelected law makers, escape from scrutiny, sheer volume, poor drafting, and Henry VIII clauses.
6. Committee on Ministers' Powers, 1932, Donoughmore: delegated legislation is necessary and inevitable; define the powers, use exceptional powers sparingly, and set up scrutiny committees.

Test yourself

1. What is delegated legislation? Why has it grown? Delegated legislation is law made by the executive or another authority under a power conferred by an Act of the legislature, and it has the force of law provided it is within the power conferred and consistent with the Constitution. It has grown because a legislature has limited time and cannot enact the detail of every scheme; because modern regulation is technical and requires expertise the legislature does not have; because rules can be amended quickly whereas an Act cannot; because emergencies require immediate general rules; because administrative arrangements need to be capable of experiment; because unforeseen contingencies must be met without an amending Act; because local conditions vary; because some measures such as exchange and import controls must take effect without notice; and above all because the welfare State requires a volume of law beyond any legislature's capacity to enact directly.

2. State the objections to delegated legislation and the answer to them. The objections are that the law is made by persons who are not elected; that it escapes the debate, committee scrutiny and publicity that a Bill receives; that its volume is beyond supervision; that it is often badly drafted because it is prepared quickly by administrators; and that it may be used to enlarge executive power, most obviously through a Henry VIII clause allowing the executive to modify the Act itself. The answer, given by the Committee on Ministers' Powers in 1932, is that delegated legislation is necessary and inevitable, and that the remedy is not abolition but control: clear definition of the power conferred, sparing and time limited use of exceptional powers, and scrutiny committees in both Houses. Indian law adds judicial control, on the grounds set out in the chapters that follow.

3. Is delegated legislation "law"? Yes. It binds citizens and courts in the same way as the parent Act, breach of it can be penalised where the Act so provides, and it falls within the definition of "law" in Article 13(3)(a) of the Constitution, which expressly includes an ordinance, order, bye law, rule, regulation, notification, custom or usage having the force of law. The consequence is that a rule inconsistent with a fundamental right is void.

4. Distinguish delegated legislation from an administrative instruction. Delegated legislation is made under a statutory power to legislate, has the force of law, binds citizens and courts, and can be enforced by a citizen. An administrative instruction, such as a circular or office memorandum, is issued under the general executive power, has no force of law, binds only the administration internally, and cannot be enforced by a citizen as such, although a published policy may found a legitimate expectation and a departure from it in an individual case may be arbitrary under Article 14.

5. What is a Henry VIII clause? A provision in an Act empowering the executive to modify the Act itself, usually for the purpose of removing difficulties in bringing it into operation. The name comes from the Statute of Proclamations 1539, under which Henry VIII was empowered to legislate by proclamation. It is the most criticised form of delegation because it allows the delegate to alter the very instrument that limits it, and the Committee on Ministers' Powers recommended that it be used only where essential and for a limited period.

Held. By a majority, the first two provisions were wholly intra vires. The later portion of section 2 of the Part C States (Laws) Act 1950, so far as it empowered the extension of an enactment providing for the repeal or amendment of a law other than a Central Act already applicable in the Part C State, was held ultra vires. Kania CJ stated the test which has governed ever since: the essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct, and those essentials are the characteristics of a legislature itself. Once the legislature has made its law, every detail for working it out and for carrying the enactment into operation may be left to a subordinate agency; that kind of so-called delegation is different in essence, because it does not involve delegating the power to determine policy. He added that an abdication by a legislature need not amount to complete effacement of itself, and may be partial.

Why it matters. Three propositions come out of it and they are what a student must be able to state.

1. Delegation is constitutionally permissible in India. The strict American non-delegation doctrine was not adopted.
2. The essential legislative function may not be delegated. That function is the determination of policy and its formulation as a rule of conduct.
3. The legislature may not abdicate, and abdication may be partial. Conferring on a subordinate authority the power to repeal or amend existing law goes beyond working out detail.

What follows from the case

Delegation is permitted because the Indian legislature is not a delegate in the ordinary sense

A point often missed. Indian legislatures derive their power from Articles 245 and 246 of the Constitution and, within their field, that power is plenary, meaning as full as the power of the British Parliament within its own sphere. A plenary legislature is not an agent of anybody, so delegatus non potest delegare does not apply to it in its strict form. That is the doctrinal answer to the first objection.

But the power is not unlimited, because the Constitution vests it in a named body

The limit is not the maxim; it is that the Constitution has entrusted law making to an elected legislature. If that legislature could pass the whole function to a department, the constitutional scheme would be defeated by consent. Hence the prohibition on delegating the essential function, and on abdication.

Two tests, and they are the same test

Later cases express the limit in two ways, and students should know they are two formulations of one idea.

• The essential legislative function test: has the legislature itself determined the policy and formulated it as a rule of conduct, leaving only the working out?
• The policy and guidelines test: does the Act lay down a policy, and does it give the delegate a standard or guideline by which to exercise the power?

Both ask whether the legislature has done the legislating and left the administration to administer.

Where the policy may be found

A frequent examination point, and a practical one. The guidance need not be in the section conferring the power. A court will look at:

1. The preamble of the Act, which states its object.
2. The long title.
3. The scheme of the Act read as a whole, including the definitions and the substantive provisions.
4. The provision conferring the power itself, including any conditions in it.
5. The Statement of Objects and Reasons, for the purpose of understanding the mischief, though not to construe the words.

So an Act is not bad merely because the rule making section is short. The question is whether policy can be found anywhere in the Act.

The limits, stated as a list

Delegated legislation is constitutionally invalid where:

1. The parent Act delegates the essential legislative function, that is, leaves the policy to be settled by the delegate.
2. The parent Act amounts to an abdication by the legislature, including where it empowers the delegate to repeal or amend existing laws without limit.
3. The parent Act or the rule violates a fundamental right, since a rule is "law" within Article 13(3)(a).
4. The parent Act is beyond the legislative competence of the legislature under the Seventh Schedule, in which case everything under it falls with it.
5. The delegate exceeds the power conferred, which is ultra vires the Act and is treated in [Judicial Control over Delegated Legislation].

Distinguish the first two from the fifth. Points 1 and 2 attack the parent Act; point 5 attacks the rule. A student who answers a question about the validity of a rule by discussing excessive delegation has attacked the wrong instrument, and the reverse mistake is just as common.

A worked example

The State legislature passes the Maharashtra Essential Commodities Distribution Act. Compare four versions of its rule making section.

Version A. "The State Government may make rules for carrying out the purposes of this Act." The Act itself defines essential commodities, states in its preamble that its object is to secure equitable distribution at fair prices, and lays down the scheme of licensing and the offences. Valid. Policy is in the Act; the rules work it out.

Version B. "The State Government may, by notification, declare any commodity to be an essential commodity." The Act gives no criterion. Doubtful, and probably bad. The choice of what is essential is the policy question, and it has been left entirely to the delegate. It would be saved if the Act said "any commodity which in the opinion of the State Government is essential to the life of the community", because that supplies a standard.

Version C. "The State Government may make rules, and such rules may amend or repeal any provision of this Act." A Henry VIII clause of the widest kind. Bad, as abdication: the delegate is empowered to alter the very instrument that confines it.

Version D. "The State Government may extend to this State, with such modifications as it thinks fit, any law relating to distribution in force in any other State, and may repeal any corresponding law in force here." This is the Part C States provision in a State dress, and the second half falls within what the Delhi Laws Act reference held ultra vires.

Distinctions worth having straight

The distinction is treated more fully in [Forms and Types of Delegated Legislation]. It matters here because a statute attacked for excessive delegation is often defended on the ground that it is conditional legislation only.

What it does NOT mean

It does not mean India follows the American non-delegation doctrine. It does not. Delegation is permitted; only the essential function is withheld.

It does not mean a wide power is automatically bad. Wide powers are constantly upheld where the Act supplies a policy. The width of the power is evidence, not the test.

It does not mean the guidance must be in the same section. It may be found in the preamble, the title or the scheme of the Act as a whole.

It does not mean the rule is valid because the Act is. A valid parent Act can be exceeded by an invalid rule, which is a different question.

Quick revision

1. The problem: delegatus non potest delegare, separation of powers, and the democratic objection.
2. In re The Delhi Laws Act, 1912, AIR 1951 SC 332: a Presidential reference under Article 143(1) on three extension provisions.
3. Held: the Delhi Laws Act 1912 section 7 and the Ajmer-Merwara Act 1947 section 2 were wholly valid; the part of the Part C States (Laws) Act 1950 section 2 permitting repeal or amendment of an existing law was ultra vires.
4. Kania CJ's test: the essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct; detail may be left to a subordinate agency; abdication may be partial.
5. Indian legislatures have plenary power under Articles 245 and 246, so the strict agency maxim does not apply.
6. Policy may be found in the preamble, the long title, the scheme of the Act, or the enabling section.
7. Five grounds of invalidity: delegation of the essential function; abdication; violation of a fundamental right under Article 13(3)(a); want of legislative competence; and the rule exceeding the power, which attacks the rule and not the Act.

Test yourself

1. Is delegated legislation constitutionally valid in India? Discuss with reference to the leading case. Yes, within limits. The objections are that a delegate cannot delegate, that legislative power is vested in the legislature, and that unelected officials should not make law. The Supreme Court answered them in In re The Delhi Laws Act, 1912, AIR 1951 SC 332, a reference under Article 143(1) on three provisions permitting the executive to extend laws in force elsewhere, with modifications, to Delhi, Ajmer-Merwara and the Part C States. The Court upheld the first two provisions wholly, and struck down the part of the third which allowed an extended enactment to repeal or amend a law already applicable. Kania CJ held that the essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct, and that those essentials belong to the legislature; detail may be left to a subordinate agency, but the legislature may not abdicate, and abdication may be partial. Indian legislatures have plenary power under Articles 245 and 246, so the maxim delegatus non potest delegare does not apply to them in its strict form.

2. What is the essential legislative function? It is the determination of the legislative policy and its formulation as a rule of conduct. It is what marks a legislature out as a legislature, and it cannot be delegated. Everything that remains, the working out of detail and the machinery for carrying the enactment into operation, may be left to a subordinate agency, and delegation of that kind does not offend the Constitution because it does not hand over the power to determine policy.

3. Where may a court look for the policy of an Act? In the preamble, in the long title, in the scheme of the Act read as a whole including its definitions and substantive provisions, in the enabling section itself and any conditions attached to the power, and, for understanding the mischief though not for construing the words, in the Statement of Objects and Reasons. An Act is therefore not invalid merely because the rule making section is brief.

4. On what grounds may delegated legislation be held unconstitutional? Where the parent Act delegates the essential legislative function; where the parent Act amounts to abdication by the legislature, including an unlimited power to repeal or amend existing laws; where the parent Act or the rule violates a fundamental right, a rule being "law" within Article 13(3)(a); and where the parent Act is beyond the legislative competence of the legislature under the Seventh Schedule. A rule may also be bad for exceeding the power conferred, but that is an attack on the rule rather than on the Act.

5. Distinguish delegated legislation from conditional legislation. In delegated legislation the legislature makes the law but leaves the detail to be supplied by the delegate, who exercises a power legislative in character. In conditional legislation the legislature makes the law completely and leaves to the delegate only the decision whether, when or where it shall be brought into operation, which is an executive act of finding a fact. The distinction matters because the question of excessive delegation cannot arise in conditional legislation, since no legislative power has been delegated at all.

Impermissible delegation

The following may not be delegated.

1. The essential legislative function, that is, the determination of policy and its formulation as a rule of conduct.
2. Repeal of an Act. The power to repeal is legislative in the fullest sense.
3. Modification touching policy. Modification is permissible as machinery; it becomes impermissible when it alters the essential character of the Act.
4. Power to impose a tax, except that the rate may be left within limits fixed by the legislature and on a stated principle.
5. Ouster of jurisdiction of the courts.
6. Retrospective operation, unless the parent Act expressly confers it, since a rule made under a general power ordinarily operates prospectively only.
7. A wide Henry VIII clause, permitting the delegate to modify the parent Act itself without limit.

The cases, worked

Delegation struck down for want of any standard

Facts. Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554, concerned the Drugs and Magic Remedies (Objectionable Advertisements) Act 1954, which prohibited advertisements commending drugs for the treatment of the diseases and conditions listed in section 3. Clause (d) of section 3 covered venereal disease "or any other disease or condition which may be specified in the rules made under this Act", and section 16 conferred the rule making power, sub-section (2)(a) authorising the specification of diseases to which section 3 would apply. A manufacturer of Ayurvedic medicines challenged the Act.

Held. The Act as a whole was upheld: its object was to prevent self-medication and self-treatment, a commercial advertisement of one's own business is not part of the freedom of speech under Article 19(1)(a), and the restrictions were otherwise reasonable. But the words "or any other disease or condition which may be specified in the rules made under this Act" in clause (d) of section 3 were ultra vires as conferring uncanalised and uncontrolled power on the executive. Parliament had established no criteria and no standards, had prescribed no principle on which a particular disease was to be specified, and had not stated what facts or circumstances were to be taken into account. The specification therefore went beyond the permissible boundaries of valid delegation, and the Schedule to the rules fell with it. The words were severable, so the rest of section 3 stood.

Why it matters. It is the standard example of delegation struck down, and note precisely what was struck down: not the rule making power in section 16, but the substantive words in section 3 that gave the executive the choice of what the Act should cover. That is the policy question.

Delegation upheld because the policy was in the section

Facts. Gwalior Rayon Silk Mfg (Wvg) Co. Ltd v. Assistant Commissioner of Sales Tax, AIR 1974 SC 1660, concerned section 8(2)(b) of the Central Sales Tax Act 1956, which provided that tax on inter-State sales of goods other than declared goods, not falling within section 8(1), should be calculated at ten per cent or at the rate applicable inside the appropriate State, whichever was higher. Four appeals raised the single question whether that suffered from excessive delegation, on the ground that Parliament had not fixed the rate itself but had adopted the State rate, and so had laid down no policy and had abdicated.

Held. The appeals were dismissed. There is a clear legislative policy in section 8(2)(b) itself: where the local rate is below ten per cent the dealer pays ten per cent, and where it exceeds ten per cent the Central rate matches it, so that the Central rate is in no event less than the local rate. The object is to prevent an unregistered dealer purchasing in inter-State trade from being better placed than an intra-State purchaser.

Why it matters. It shows the test being applied the other way, and it shows where policy may be found: inside the impugned provision itself, read for its object. Set it against Hamdard Dawakhana and the difference is visible at once. In Hamdard Dawakhana nothing in the Act told the executive which diseases to choose. In Gwalior Rayon the section told the reader exactly what result was intended in every case.

The foundation

Facts. In re The Delhi Laws Act, 1912, AIR 1951 SC 332, was a Presidential reference under Article 143(1) on three provisions empowering the executive to extend to a territory, with such restrictions and modifications as it thought fit, enactments in force elsewhere; the third, section 2 of the Part C States (Laws) Act 1950, went further and allowed an extended enactment to repeal or amend a corresponding law already applicable.

Held. The first two provisions were wholly intra vires. The later portion of section 2 of the Part C States (Laws) Act 1950 was ultra vires. Kania CJ held that the essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct, that once the legislature has made its law the detail of working it out may be left to a subordinate agency, and that an abdication by a legislature need not be complete effacement and may be partial.

Why it matters here. It is the source of the test, and its treatment of the repeal power is the source of the rule that repeal may not be delegated.

A worked example: four rule making sections compared

The State legislature enacts the Maharashtra Private Coaching Classes (Regulation) Act. Consider four possible sections.

Section A. "No person shall conduct a coaching class except under a licence. A licence shall be granted to an applicant who has premises of not less than the prescribed area, a fire safety certificate and the prescribed teacher to student ratio. The State Government may make rules prescribing the area, the ratio and the form of application." Valid. The legislature has decided the policy, that coaching classes shall be licensed and on what kinds of criteria. The delegate fills in figures.

Section B. "The State Government may make rules regulating coaching classes in such manner as it thinks fit." Bad. The Act contains no policy at all. Whether classes should be licensed, taxed, capped or left alone is left entirely to the delegate. This is Hamdard Dawakhana in a different subject.

Section C. "The State Government may, by notification, exempt any coaching class or class of coaching classes from all or any of the provisions of this Act." Bad as framed, because no criterion is given for exemption, so the delegate decides who the Act applies to, which is the policy. It would be saved by adding "where it is satisfied that the class is conducted solely for students from families below the poverty line", because that is a standard.

Section D. "The State Government may make rules, and such rules may modify any provision of this Act so far as may be necessary to remove any difficulty in giving effect to it, provided no such rule shall be made after two years from the commencement of this Act and every such rule shall be laid before the State legislature." Valid, though at the edge. It is a Henry VIII clause, but it is confined to removing difficulties, limited to two years and subject to laying. Compare an unqualified power to modify the Act, which would be abdication.

What beginners get wrong

Confusing an attack on the Act with an attack on the rule. Excessive delegation attacks the parent Act: it says the legislature gave away too much. Ultra vires attacks the rule: it says the delegate took more than it was given. A question asking whether a rule is valid because it goes beyond the Act is not a question about excessive delegation at all. See [Judicial Control over Delegated Legislation].

Thinking a wide power is automatically bad. Very wide powers are regularly upheld. Gwalior Rayon upheld a provision that adopted a rate fixed by another legislature altogether. Width is evidence; absence of policy is the test.

Looking for the policy only in the impugned section. It may be in the preamble, the long title or the scheme of the Act as a whole.

Assuming that because the Act is valid the rule must be. They are separate questions with separate answers.

Distinctions worth having straight

Quick revision

1. Delegation is excessive when the legislature leaves the delegate to determine policy.
2. Two formulations, one test: the essential legislative function, and policy with guidelines.
3. Permissible: commencement, extension, inclusion in a schedule on stated criteria, suspension, detail, modification not touching policy, and a confined removal of difficulties clause.
4. Impermissible: the essential legislative function, repeal, modification touching policy, taxation without limits or principle, ouster of the courts, retrospectivity without express authority, and an unlimited Henry VIII clause.
5. In re The Delhi Laws Act, 1912, AIR 1951 SC 332: the source of the test; the power to repeal an existing law could not be delegated.
6. Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554: words allowing the executive to add "any other disease" were uncanalised and uncontrolled and were struck down; no criteria, no standards, no principle.
7. Gwalior Rayon Silk Mfg (Wvg) Co. Ltd v. Assistant Commissioner of Sales Tax, AIR 1974 SC 1660: policy was found in the impugned section itself, so the provision was upheld.
8. Excessive delegation attacks the Act; ultra vires attacks the rule.

Test yourself

1. Explain the doctrine of excessive delegation with decided cases. A legislature may delegate rule making power but may not delegate its essential legislative function, which is the determination of the legislative policy and its formulation as a rule of conduct: In re The Delhi Laws Act, 1912, AIR 1951 SC 332. Delegation is excessive where the Act supplies no policy, standard or guideline, so that the delegate must settle the policy itself. In Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554, words in section 3(d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 which allowed the executive to specify "any other disease or condition" were struck down as conferring uncanalised and uncontrolled power, because Parliament had established no criteria, no standards and no principle. By contrast, in Gwalior Rayon Silk Mfg (Wvg) Co. Ltd v. Assistant Commissioner of Sales Tax, AIR 1974 SC 1660, section 8(2)(b) of the Central Sales Tax Act 1956 was upheld, because the policy, that the Central rate should never be less than the local rate, was apparent in the section itself.

2. What may and may not be delegated? Permissible: the power to appoint the date of commencement; to extend the Act to areas or classes on stated criteria; to add to or remove from a schedule where the Act supplies the basis; to suspend a provision in stated circumstances; to prescribe forms, fees, procedure and other detail; to apply an existing law with modifications not touching policy; and to remove difficulties, if the power is confined and time limited. Impermissible: the essential legislative function; the power to repeal an Act; modification which alters the policy or essential character of the Act; the imposition of a tax without limits or a stated principle; the ouster of the jurisdiction of the courts; retrospective operation absent express authority; and an unlimited power to modify the parent Act.

3. Where can a court find the policy of an Act? In the impugned section itself read for its object, as in Gwalior Rayon Silk Mfg (Wvg) Co. Ltd v. Assistant Commissioner of Sales Tax, AIR 1974 SC 1660; and otherwise in the preamble, the long title, the definitions, and the scheme of the Act read as a whole. An Act is therefore not invalid merely because the enabling section is brief, and a delegation is not saved merely because the enabling section is long.

4. Distinguish excessive delegation from a rule being ultra vires. Excessive delegation is an attack on the parent Act: the complaint is that the legislature failed to lay down policy and so handed its essential function to the delegate. If it succeeds, the delegating provision is void and the rules made under it fall with it. A rule being ultra vires is an attack on the rule: the complaint is that the delegate exceeded the power conferred. If it succeeds, the rule is void but the Act stands. The two are frequently confused and require different arguments.

5. Is a Henry VIII clause always bad? No. A clause allowing the executive to modify the Act itself is the most criticised form of delegation, because it lets the delegate alter the instrument that confines it, and an unlimited power of that kind is abdication. But a narrow removal of difficulties clause, confined to what is necessary to give effect to the Act, limited in time and subject to laying before the legislature, is ordinarily valid. The Committee on Ministers' Powers recommended precisely that such powers be used only where essential and for a limited period.

3. Power to amend or repeal a statute: the Henry VIII clause. A provision empowering the executive to modify the parent Act, or another Act, so far as may appear necessary to give effect to it. The name comes from the Statute of Proclamations 1539, under which Henry VIII was empowered to legislate by proclamation. Such a clause is tolerated when it is confined to removing difficulties, limited in time and subject to laying; an unlimited version is abdication. In In re The Delhi Laws Act, 1912, AIR 1951 SC 332, the portion of section 2 of the Part C States (Laws) Act 1950 which allowed an extended enactment to repeal or amend a corresponding law already applicable was held ultra vires.

4. Power to remove difficulties. Very common in modern Acts, and closely related to the Henry VIII clause. Its usual form is that if any difficulty arises in giving effect to the Act, the Government may by order do anything not inconsistent with the Act which appears necessary to remove the difficulty, and that no such order may be made after a stated number of years. Its presence in the Whistle Blowers Protection Act is noted in [Whistleblowers' Protection: the Act of 2014 and the PIDPI Resolution].

Sub-delegation

Sub-delegation is delegation by the delegate: the Act empowers A to make rules, and A makes a rule empowering B to make further rules or to decide something.

The governing maxim is delegatus non potest delegare, a delegate cannot further delegate. Applied to delegated legislation the position is:

1. Sub-delegation is not permitted unless the parent Act authorises it, expressly or by necessary implication.
2. Where it is authorised, the sub-delegate is confined by both the parent Act and the rule under which it acts.
3. Sub-delegation of the essential legislative function is bad even where the Act appears to authorise it, because the legislature could not have delegated it in the first place.

Distinguish sub-delegation of legislative power, which is what this chapter is about, from sub-delegation of decision making power, which is a ground of review under [Grounds of Judicial Review: Failure to Exercise Discretion].

Classification 3: by purpose

This is the list that appears in the textbooks and it is worth knowing because it is a convenient way of describing what a particular section does.

Conditional legislation, which is not delegated legislation at all

This is the distinction most often set as a question, and the one students most often get wrong.

In delegated legislation, the legislature makes the law but leaves some of its content to be supplied by the delegate. The delegate exercises a power that is legislative in character: it adds to the law.

In conditional legislation, the legislature makes the law completely, and leaves to another authority only the decision whether, when or where it shall be brought into operation. The delegate adds nothing to the content of the law. Its task is to find a fact, that the conditions for bringing the law into force exist, and to declare it.

The practical consequence is the one to remember: an Act attacked for excessive delegation is often defended on the ground that it is conditional legislation only, and if that defence succeeds the attack fails at once, because the question of policy and guidance never arises.

A worked example: reading a single Act

The Maharashtra Shops and Establishments Act contains these provisions. Classify each.

1. "This Act shall come into force in such areas and on such dates as the State Government may, by notification, appoint." Conditional legislation. The law is complete; only its occasion is left.
2. "The State Government may, by notification, apply all or any of the provisions of this Act to any establishment or class of establishments." Extension type delegated legislation, and it needs a criterion in the Act or it is at risk of being uncanalised.
3. "The State Government may make rules prescribing the registers to be maintained and the forms of notice." Framing type, normal delegation. Unproblematic.
4. "The State Government may exempt any establishment from all or any of the provisions of this Act." Exclusion or exemption type, and again it needs a standard.
5. "The Commissioner may, with the previous sanction of the State Government, make bye laws for the area of the Corporation." Sub-delegation, valid because the Act authorises it and confines it by requiring sanction.
6. "If any difficulty arises in giving effect to the provisions of this Act, the State Government may, by order published in the Official Gazette, make such provisions, not inconsistent with this Act, as appear to it to be necessary for removing the difficulty, provided no such order shall be made after the expiry of two years." Removal of difficulties, a confined Henry VIII clause. Valid because it is limited in subject matter and in time.

Notice that one short Act contains five different types and one instance of something that is not delegated legislation at all. Being able to sort a section into these boxes is precisely what an examiner is testing.

What it does NOT mean

The title does not decide the legal character. A thing called an order may be legislative or administrative.

Exceptional delegation is not automatically invalid. It is delegation that requires closer scrutiny, not delegation that is forbidden. A time limited removal of difficulties clause is exceptional and valid.

Sub-delegation is not always unlawful. It is unlawful only where the parent Act does not authorise it, or where what is sub-delegated is the essential legislative function.

Conditional legislation is not a lesser form of delegated legislation. It is a different thing, and the difference is that no legislative power passes at all.

Quick revision

1. Three classifications: by title, by width of power, and by purpose. The second is the one with legal consequences.
2. By title: rule, regulation, bye law, order, notification, scheme. The label does not decide the character.
3. Normal delegation: policy in the Act, detail with the delegate. Positive and negative forms.
4. Exceptional delegation: power over matters of principle; power to tax; Henry VIII clauses to amend or repeal; removal of difficulties.
5. Henry VIII clause: from the Statute of Proclamations 1539. Tolerated if confined, time limited and subject to laying.
6. Sub-delegation: delegatus non potest delegare; permitted only if the parent Act authorises it; the essential legislative function may never be sub-delegated.
7. By purpose: enabling, extension, inclusion, exclusion, suspending, dispensing, taxing, modifying, framing, removal of difficulties.
8. Conditional legislation: the law is complete, only its operation is left to be triggered; excessive delegation cannot arise.

Test yourself

1. Describe the forms and types of delegated legislation. Delegated legislation may be classified in three ways. By title it appears as rules, regulations, bye laws, orders, notifications and schemes, though the title does not determine legal character. By the width of the power conferred it is either normal delegation, where the Act settles policy and leaves detail, or exceptional delegation, which includes power to legislate on matters of principle, power to impose a tax, Henry VIII clauses permitting amendment or repeal of a statute, and removal of difficulties clauses. By purpose it is described as enabling, extension, inclusion, exclusion, suspending, dispensing, taxing, modifying, framing and removal of difficulties. Sub-delegation, that is delegation by the delegate, is permitted only where the parent Act authorises it.

2. What is a Henry VIII clause? Is it valid in India? It is a provision empowering the executive to modify or repeal the parent Act or another Act, named after the Statute of Proclamations 1539 under which Henry VIII could legislate by proclamation. It is the most criticised form of delegation because it allows the delegate to alter the instrument that confines it. It is not invalid in India as such. A narrow removal of difficulties clause, confined to what is necessary to give effect to the Act, limited in time and subject to laying, is ordinarily upheld. An unlimited power to modify the Act is abdication. In In re The Delhi Laws Act, 1912, AIR 1951 SC 332, the part of section 2 of the Part C States (Laws) Act 1950 permitting an extended enactment to repeal or amend a corresponding existing law was held ultra vires.

3. Distinguish delegated legislation from conditional legislation. In delegated legislation the legislature makes the law but leaves part of its content to be supplied by the delegate, whose act is legislative in character. In conditional legislation the legislature makes the law completely and leaves to the delegate only the decision whether, when or where it shall be brought into operation, which is an executive act consisting of finding a fact. The distinction matters because excessive delegation cannot arise in conditional legislation: no legislative power has been delegated, so the question whether the Act supplies policy and guidance never arises.

4. Is sub-delegation permissible? Only where the parent Act authorises it, expressly or by necessary implication, because a delegate cannot further delegate. Where it is authorised, the sub-delegate is bound both by the parent Act and by the rule under which it acts, and any excess is ultra vires. Sub-delegation of the essential legislative function is invalid in any event, since the legislature could not have delegated that function in the first place.

5. "The name given to an instrument decides its legal character." Comment. The statement is wrong. The label used in the parent Act, whether rule, regulation, bye law, order or notification, is a matter of drafting convention and does not determine the instrument's character. An order may be legislative where it lays down a general rule for the future, and administrative where it determines the case of an identified person; the consequences, in terms of natural justice, reasons and the appropriate writ, follow from what the instrument does and not from what it is called.

2. The rule is inconsistent with the parent Act. A rule cannot contradict the Act under which it is made. If the Act says a licence "shall" be granted to a qualified applicant, a rule saying it "may" be refused on other grounds is void.

3. The rule is inconsistent with another statute. Delegated legislation is subordinate to all primary legislation, not only its own parent.

4. The rule violates a fundamental right. A rule is "law" within Article 13(3)(a), which defines law as including any ordinance, order, bye law, rule, regulation, notification, custom or usage having the force of law. So a rule inconsistent with Part III is void, and the commonest attacks are under Article 14 for arbitrariness or unreasonable classification and Article 19 for unreasonable restrictions.

5. The rule is unreasonable. This ground is well established for bye laws of local authorities, which have long been held void if manifestly unjust, partial, oppressive or made in bad faith. For rules made by a Government the ground is narrower: a rule is not struck down merely because a judge thinks it unwise, but manifest arbitrariness engages Article 14 and produces much the same result.

6. The rule is made in bad faith. Delegated legislation made for a purpose other than that for which the power was given, or to injure a particular person, is void.

7. The rule is retrospective without authority. A rule made under a general power operates prospectively. Retrospective effect requires express authority in the parent Act, because taking away a right already accrued is a legislative act of a higher order.

8. The rule excludes the jurisdiction of the courts. A rule cannot oust judicial review.

9. Sub-delegation without authority. A rule which passes on the rule making power to somebody else, where the parent Act does not permit it, is void: [Forms and Types of Delegated Legislation].

Procedural ultra vires

The parent Act often prescribes steps that must be taken before a rule is made: previous publication of a draft, consultation with a named body or with affected interests, obtaining the sanction of a superior authority, or laying before the legislature.

The question in every case is whether the requirement is mandatory, in which case non-compliance makes the rule void, or directory, in which case substantial compliance suffices. There is no mechanical test. Courts look at the purpose of the requirement, the words used, and the consequences of holding it mandatory.

Publication stands somewhat apart, because a law that has not been published cannot bind those it governs at all.

Facts. Harla v. State of Rajasthan, AIR 1951 SC 467, concerned the Jaipur Opium Act. The Council of Ministers appointed by the Crown Representative for the government of the Jaipur State passed a Resolution in 1923 purporting to enact that Act. It was neither promulgated nor published in the Gazette nor otherwise made known to the public. The Jaipur Laws Act 1923, in force from 1 November 1924, provided that the law to be administered by the courts should include enactments passed by the State and published in the Official Gazette. In 1938 the Opium Act was amended by adding a clause that it should come into force from 1 September 1924. The appellant was convicted under section 7 of it.

Held. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or at least there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The mere passing of the Resolution, without publication or promulgation, was not sufficient to make the law operative, so the Jaipur Opium Act was not a valid law. It was not saved by the Jaipur Laws Act 1923, because it was not a valid law in force on 1 November 1924, and adding a clause in 1938 that it should come into force in 1924 was of no use.

Why it matters. It is the Indian authority that publication is a condition of a law becoming operative, and it is the foundation of the publication requirement discussed in [Other Controls: Publication, Consultation and Procedural Safeguards].

What a court will not do

An answer that lists only the grounds of attack misses the other half, which is judicial restraint. Three limits are worth stating.

1. A court does not sit in appeal on the merits of a rule. Whether a fee should be twenty rupees or thirty is not for the court. This is the position stated generally in Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899: in judicial review the court is not an appellate authority and may not direct or advise the executive on matters of policy.
2. There is a presumption of constitutionality, and the burden lies on the person attacking the rule.
3. Natural justice does not ordinarily apply to rule making, because a rule affects a class and not an identified person: [Classification of Administrative Functions].

A worked example

The Maharashtra Private Coaching Classes (Regulation) Act empowers the State Government to "make rules prescribing the minimum area of premises, the teacher to student ratio and the form of application for a licence". The Government makes these rules. Test each.

Rule 3 prescribes a minimum area of forty square metres. Valid. Squarely within the enabling words.

Rule 4 provides that no licence shall be granted to a person who has been convicted of any offence. Ultra vires. The enabling section permits rules on area, ratio and form, and says nothing about disqualification. The Government has legislated on a subject not delegated to it.

Rule 5 provides that a licence may be cancelled without notice. Two grounds. It is inconsistent with the scheme of the Act if the Act provides for cancellation after inquiry, and it offends natural justice and Article 14 by excluding a hearing before an order affecting an identified person: [Audi Alteram Partem].

Rule 6 provides that the rules shall be deemed to have come into force two years ago, and that licences granted in that period are cancelled. Ultra vires, because retrospective operation requires express authority in the parent Act, and this Act gives none.

Rule 7 provides that the Commissioner may by circular vary the minimum area. Ultra vires as sub-delegation, because the Act gave the rule making power to the State Government and did not authorise it to be passed on.

Rule 8 is made without publishing a draft, although the Act says rules shall be made "after previous publication". Procedurally ultra vires if the requirement is mandatory, which a requirement of previous publication ordinarily is, since its purpose is to let affected persons object.

One enabling section, six defective rules, six different grounds. That is the shape of a problem question on this topic.

Distinctions worth having straight

What it does NOT mean

It does not mean a court can strike down a rule because it disagrees with it. The grounds are legality, not merit.

It does not mean unreasonableness is a general ground against all rules. It is settled for bye laws; for Government rules it operates mainly through Article 14.

It does not mean a rule is safe because the Act is valid. The two questions are separate and the second is the one most often decisive.

Quick revision

1. The doctrine is ultra vires, and it has two branches: the Act is bad, or the rule is bad.
2. Act bad: want of legislative competence; violation of a fundamental right; excessive delegation.
3. Rule substantively bad: beyond the enabling words; inconsistent with the parent Act; inconsistent with another statute; violates a fundamental right, a rule being "law" under Article 13(3)(a); unreasonable, settled for bye laws; mala fide; retrospective without authority; ousts the courts; unauthorised sub-delegation.
4. Rule procedurally bad: a mandatory requirement of previous publication, consultation or sanction not complied with. Mandatory or directory is decided by purpose, words and consequences.
5. Harla v. State of Rajasthan, AIR 1951 SC 467: publication or promulgation is necessary before a law becomes operative.
6. Limits on the court: no appeal on merits, a presumption of constitutionality, and natural justice does not ordinarily apply to rule making. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Test yourself

1. Discuss judicial control over delegated legislation. Judicial control operates through the doctrine of ultra vires, which has two branches. First, the parent Act may itself be invalid, for want of legislative competence, for violation of a fundamental right, or for excessive delegation of the essential legislative function; if so, the rules made under it fall with it. Second, the rule may be invalid although the Act is valid. Substantively, a rule is void if it goes beyond the words of the enabling section, is inconsistent with the parent Act or with another statute, violates a fundamental right, since a rule is "law" within Article 13(3)(a), is unreasonable, is made in bad faith, is retrospective without express authority, ousts the jurisdiction of the courts, or sub-delegates without authority. Procedurally, a rule is void if a mandatory requirement such as previous publication or consultation has not been complied with. The court does not sit in appeal on the merits, presumes constitutionality, and does not ordinarily require a hearing before rules are made.

2. What is meant by procedural ultra vires? When does non-compliance invalidate a rule? Procedural ultra vires arises where the parent Act prescribes steps to be taken before a rule is made, such as previous publication of a draft, consultation with a named body or with affected interests, or the sanction of a superior authority, and those steps are not taken. Whether non-compliance invalidates the rule depends on whether the requirement is mandatory or directory, which is decided by looking at the purpose of the requirement, the language used and the consequences of holding it mandatory. A requirement of previous publication, whose purpose is to allow affected persons to object, is ordinarily mandatory.

3. Is publication necessary for delegated legislation to take effect? Yes in substance. Harla v. State of Rajasthan, AIR 1951 SC 467, held that before a law can become operative it must be promulgated or published, and broadcast in some recognisable way so that all may know what it is, or there must at least be a customary channel through which knowledge can be obtained with due and reasonable diligence. A resolution enacting the Jaipur Opium Act which was never published was accordingly not a valid law, and a later clause purporting to give it retrospective commencement did not save it.

4. Can a rule be struck down for unreasonableness? For bye laws made by local authorities the ground is well established: a bye law is void if it is manifestly unjust, partial, oppressive or made in bad faith. For rules made by a Government the ground is narrower, and a court will not strike a rule down merely because it thinks it unwise; but manifest arbitrariness attracts Article 14, and a restriction that is disproportionate attracts Article 19, so the result is often reached by the constitutional route rather than by a free standing test of reasonableness.

5. A rule made under a valid Act provides that it shall have effect from a date two years before it was made. Is it valid? Ordinarily not. Delegated legislation made under a general rule making power operates prospectively, and retrospective effect requires express authority in the parent Act, because giving a rule retrospective operation takes away rights already accrued and is a legislative act of a higher order than filling in detail. If the Act contains no such authority the rule is substantively ultra vires to the extent of its retrospectivity.

1. Simple laying

The rule is laid before the House for information only. It comes into force on its own terms and the House takes no decision on it. This is the weakest form: it secures publicity and nothing more.

A variant is laying with immediate effect, where the rule takes effect at once and is laid afterwards, and another is laying with deferred operation, where the rule does not come into force until a stated period after laying, so that the House has an opportunity to consider it first.

2. Laying subject to negative resolution

The rule takes effect but remains before the House for a stated period, and the House may within that period resolve that it be annulled or modified. If no resolution is passed, the rule stands.

This is by far the commonest form in India. The standard clause runs, in substance: every rule made under this Act 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 thirty days which may be comprised in one session or in two or more successive sessions; and if before the expiry of the session immediately following, both Houses agree in making any modification in the rule or that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

That final proviso is worth learning, because it contains the practical consequence: annulment operates for the future only, and what was done under the rule while it was in force remains good.

3. Laying subject to affirmative resolution

The rule does not take effect, or ceases to have effect, unless the House positively approves it. This is the strongest form and is used sparingly, for powers of an exceptional kind.

The legal effect of a failure to lay

A question that is regularly set. The answer has two parts.

If the parent Act makes laying a condition of the rule coming into force, non-compliance is fatal: the rule never takes effect.

If the Act simply requires the rule to be laid after it is made, the requirement is ordinarily treated as directory, and failure to lay does not by itself invalidate a rule that is otherwise within the power conferred. The reasoning is that the purpose of laying is to inform the House, and the citizen's rights should not turn on whether a departmental clerk sent copies to the Secretariat.

The test is the same as for any procedural requirement: mandatory or directory, decided on the purpose of the provision, its language and the consequences: [Judicial Control over Delegated Legislation].

Stage 3: the scrutiny committees

Laying is of little use if nobody reads what is laid, and the volume is far beyond what a House can consider. Hence the committees.

The Committee on Subordinate Legislation of the Lok Sabha was constituted in 1953, and the Rajya Sabha constituted its own in 1964. Each State legislature has an equivalent committee. They are appointed under the rules of procedure made under Articles 118 and 208.

Its function is to examine whether the powers to make rules delegated by Parliament are being properly exercised. The heads on which it reports are, in substance:

1. Whether the rule is in accordance with the general object of the Act.
2. Whether it contains matter which should more properly be dealt with in an Act.
3. Whether it contains an imposition of taxation.
4. Whether it directly or indirectly bars the jurisdiction of the courts.
5. Whether it gives retrospective effect where the Act does not expressly authorise it.
6. Whether it involves unusual or unexpected use of the power.
7. Whether there has been unjustifiable delay in publishing it or in laying it before the House.
8. Whether, for any reason, its form or purport calls for elucidation.

Its limits, which an honest answer states: the committee is advisory, it reports rather than annuls, it works after the rule is in force, it cannot cover the whole volume of delegated legislation, and its recommendations depend on the Government accepting them.

A worked example

An Act provides: "The Central Government may make rules prescribing the standards of purity for packaged drinking water. Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament for a total period of thirty days ... and if both Houses agree that the rule should not be made, the rule shall thereafter be of no effect, without prejudice to the validity of anything previously done thereunder."

Rules are made in January and laid in February. Both Houses resolve in April that the rule should not be made.

• The rule was valid from January to April, and prosecutions launched in that period on the strength of it are unaffected, because of the saving proviso.
• From April the rule has no effect.
• The Government may make a fresh rule, since the power in the Act survives; annulment of a rule is not repeal of the power.

Now suppose the rules were never laid at all. The rule is not thereby void, because this Act requires laying after the rule is made rather than as a condition of its coming into force, so the requirement is directory. The remedy is political: the Committee on Subordinate Legislation would report the delay under head 7, and the House could take the matter up.

Now suppose the Act had said "no rule shall come into force until it has been approved by resolution of both Houses". Then laying and approval are conditions precedent, and a rule not so approved never takes effect at all.

Distinctions worth having straight

What it does NOT mean

It does not mean Parliament approves every rule. In the ordinary negative resolution form the House does nothing at all, and the rule stands by default.

It does not mean annulment undoes what was done. The standard saving clause preserves the validity of anything previously done under the rule.

It does not mean a failure to lay makes a rule void. It does so only where the Act makes laying a condition of coming into force.

It does not mean the committee can strike anything down. It reports; it does not annul.

Quick revision

1. Three stages: control at delegation, laying, and the scrutiny committee.
2. At delegation: state the policy, confine the subject matter, set outer limits, prescribe procedure, require laying, and time limit exceptional powers.
3. Three forms of laying: simple, negative resolution, affirmative resolution. Negative resolution is the usual Indian form.
4. The standard clause: thirty days across one or more sessions, both Houses agreeing, and annulment without prejudice to anything previously done.
5. Failure to lay: fatal if laying is a condition of coming into force; otherwise ordinarily directory.
6. Committee on Subordinate Legislation: Lok Sabha 1953, Rajya Sabha 1964, and one in each State legislature. Eight heads of scrutiny.
7. Weaknesses: volume, party discipline, the committee's advisory character, and the fact that control operates after the rule is already in force.

Test yourself

1. Explain legislative control over delegated legislation. It operates at three stages. When the power is delegated, the legislature controls it by stating the policy in the Act, listing the matters on which rules may be made, setting outer limits such as maximum fees, prescribing procedural conditions such as previous publication or consultation, requiring laying, and limiting exceptional powers in time. After rules are made, control is exercised through the laying procedure, in one of three forms: simple laying for information, laying subject to negative resolution, under which the rule stands unless the House annuls or modifies it within the stated period, and laying subject to affirmative resolution, under which the rule takes effect only on approval. Continuously, control is exercised by the Committee on Subordinate Legislation of each House, constituted in the Lok Sabha in 1953 and the Rajya Sabha in 1964, which examines whether the delegated powers are being properly exercised and reports to the House.

2. What are the three forms of the laying procedure? Simple laying, where the rule is placed before the House for information and takes effect on its own terms; laying subject to negative resolution, where the rule takes effect but may be annulled or modified by resolution within the period prescribed, which is the usual Indian form; and laying subject to affirmative resolution, where the rule does not take effect unless the House positively approves it, which is used only for exceptional powers.

3. What is the effect of a failure to lay rules before the House? It depends on the parent Act. Where the Act makes laying, or approval after laying, a condition of the rule coming into force, non-compliance is fatal and the rule never takes effect. Where the Act merely requires rules to be laid as soon as may be after they are made, the requirement is ordinarily construed as directory, so that failure to lay does not by itself invalidate a rule otherwise within the power conferred; the remedy is political rather than judicial, through the scrutiny committee and the House.

4. What does the Committee on Subordinate Legislation examine? Whether the rule accords with the general object of the Act; whether it contains matter that should properly be in an Act; whether it imposes taxation; whether it bars the jurisdiction of the courts directly or indirectly; whether it has been given retrospective effect without express statutory authority; whether it involves an unusual or unexpected use of the power; whether there has been unjustifiable delay in its publication or laying; and whether its form or purport calls for elucidation. It reports to the House, and its recommendations are advisory.

5. Compare legislative and judicial control over delegated legislation. Legislative control is exercised by the House and its committee, operates continuously and both before and after the rules are made, and can question policy and merit as well as legality; its remedies are annulment or modification operating for the future, and its weaknesses are the volume of delegated legislation, party discipline and the merely advisory character of the committee. Judicial control is exercised by the courts, operates only when a case is brought by a person with standing, and is limited to legality: whether the parent Act is valid and whether the rule is within the power conferred and consistent with the Constitution. Its weaknesses are cost and delay, and its strength is that its declaration that a rule is void is binding.

Why it matters. A person cannot be convicted under a law he had no means of knowing. The proposition applies with at least equal force to delegated legislation, which is made in a department without debate and which a citizen has no other way of discovering.

How publication is effected

The ordinary mode is publication in the Official Gazette, which section 3(39) of the General Clauses Act 1897 defines as the Gazette of India or the official Gazette of a State.

Two practical points follow.

1. The parent Act usually says so, requiring rules to be published in the Gazette, and where it does the requirement is ordinarily mandatory, because its purpose is to make the rule knowable.
2. Where the Act prescribes a particular mode, that mode must be followed. Publication by some other means, however effective in fact, is not compliance if the statute names the Gazette.

A recurring examination point is whether publication must also be brought to the notice of those affected. The better view is that publication in the prescribed manner is what the law requires, and that a person is taken to know what has been published in the Gazette; but where the Act prescribes no mode at all, the rule must be published in some manner reasonably calculated to bring it to the notice of those it binds, which is Harla applied directly.

Antecedent publicity and consultation

What they are

Antecedent publicity, also called previous publication, means publishing the draft rule before making it, inviting objections and suggestions, and considering them before the rule is finalised.

Consultation means asking a named body, or the interests affected, for their views before making the rule.

Both are the administrative equivalent of a Bill being debated, and both are green light controls: they improve the rule instead of quashing it afterwards.

Where the requirement comes from

There is no general statutory requirement in India that rules be preceded by publicity or consultation. The requirement arises where the parent Act imposes it, and many Acts do. Section 23 of the General Clauses Act 1897 supplies the standard machinery where an Act requires rules to be made "after previous publication": the draft must be published in the manner the Act requires, a date must be specified by which objections and suggestions will be considered, and the authority must consider any objections received before the date.

The forms consultation takes

1. Consultation with a named statutory body, for example a board or council constituted by the Act itself.
2. Consultation with affected interests, such as trade associations, employers and unions.
3. Consultation with an expert body, where the subject is technical.
4. Publication of a draft for public objections, which is consultation with everybody.
5. Preparation of the rules by an outside body and adoption by the Government, which is the strongest form.

The effect of a failure to consult

The same question as with laying, and the same test: is the requirement mandatory or directory? Where the Act says rules shall be made after previous publication, the requirement is ordinarily mandatory, because its whole purpose is to give affected persons the chance to object, and a rule made without it is procedurally ultra vires: [Judicial Control over Delegated Legislation]. Where the Act merely says the Government "may consult", the provision is enabling and no invalidity follows.

Note the limit. A duty to consult is a duty to consider what is said, not a duty to agree. The authority must consult with an open mind and give genuine consideration to the objections, but it remains free to make the rule it thinks right.

The political and public controls

These are the least legal and the most constant.

1. Ministerial responsibility. The minister answers in the House for rules made by the department, through questions, debates and the scrutiny committee.
2. The press and public opinion. A rule that provokes a public reaction is often withdrawn without any court being involved.
3. Trade, professional and civil society bodies, which watch the Gazette in their own field far more attentively than any legislature can.
4. Pre-legislative consultation. The practice, now standard for central departments, of placing draft legislation and subordinate legislation in the public domain for comment before it is finalised. It is a policy rather than a statute, so its breach does not invalidate a rule, but it has changed practice.
5. The Right to Information Act 2005. Section 4 obliges every public authority to publish, among other things, the rules, regulations, instructions, manuals and records it holds or uses, and the norms it sets for the discharge of its functions. That converts what used to be a matter of departmental grace into an enforceable obligation, and it is treated in [Obligations of Public Authorities and How a Request Is Made].

Point 5 is worth making in an answer because it links Module II to Module IV and shows the controls working together.

A worked example

An Act provides: "The State Government may, after previous publication, make rules prescribing the fees payable for a licence under this Act."

The Government publishes a draft in the Gazette on 1 March, stating that objections will be considered until 31 March. Three trade associations object that the fee is too high. The Government considers the objections, records that it is satisfied the fee is justified, and makes the rules unchanged on 15 April, publishing them in the Gazette.

Valid. Previous publication was complied with, objections were considered, and the duty to consult is a duty to consider, not to agree.

Variation 1. The Government makes the rules on 15 April without publishing any draft. Procedurally ultra vires, because "after previous publication" is a mandatory requirement whose purpose is to allow objection, and section 23 of the General Clauses Act 1897 supplies the machinery it requires.

Variation 2. The Government publishes the draft, receives objections, and makes the rules on the same day without reading them. Bad, because consultation requires genuine consideration; going through the form without the substance is not compliance.

Variation 3. The rules are made and considered but never published in the Gazette, though they are circulated to all licensing officers. The rules do not bind licensees, on the principle of Harla v. State of Rajasthan, AIR 1951 SC 467: a law must be published in some recognisable way before it becomes operative, and internal circulation to officials is not that.

Distinctions worth having straight

What it does NOT mean

It does not mean there is a general duty to consult before making rules. In India the duty arises from the parent Act. There is no equivalent of a general administrative procedure statute.

It does not mean consultation obliges the authority to accept what it hears. It obliges genuine consideration with an open mind.

It does not mean natural justice applies to rule making. It does not, because a rule affects a class and not an identified person. Consultation is a statutory substitute for a hearing, not an application of natural justice.

It does not mean publication anywhere will do. Where the Act prescribes the Gazette, the Gazette is what is required.

Quick revision

1. Other controls are procedural, publication and consultation, and political, ministerial responsibility, the press, affected bodies, pre-legislative consultation and the Right to Information Act 2005.
2. Harla v. State of Rajasthan, AIR 1951 SC 467: a law must be promulgated or published, broadcast in some recognisable way, before it becomes operative; an unpublished Resolution enacting the Jaipur Opium Act was not a valid law, and retrospective commencement added in 1938 did not save it.
3. The ordinary mode is the Official Gazette, defined in section 3(39) of the General Clauses Act 1897. Where the Act prescribes a mode, that mode must be used.
4. Previous publication publishes the draft and invites objections; section 23 of the General Clauses Act 1897 supplies the machinery.
5. Forms of consultation: a named statutory body, affected interests, an expert body, a published draft, or rules prepared by an outside body.
6. A mandatory requirement of previous publication or consultation, if omitted, makes the rule procedurally ultra vires. A duty to consult is a duty to consider, not to agree.
7. Section 4 of the Right to Information Act 2005 now requires proactive publication of rules, instructions and norms.

Test yourself

1. What controls over delegated legislation exist apart from judicial and legislative control? Procedural and political controls. The procedural controls are publication, without which a rule does not become operative, and antecedent publicity and consultation, under which a draft is published for objections or affected or expert bodies are consulted before the rule is made. The political controls are the responsibility of the minister to the House, scrutiny by the press and by trade, professional and civil society bodies, the practice of pre-legislative consultation, and the obligation in section 4 of the Right to Information Act 2005 to publish rules, instructions, manuals and norms proactively. These operate before the rule is made or as it is applied, and so reach the great mass of delegated legislation that no court ever sees.

2. Is publication necessary before delegated legislation takes effect? Yes. Harla v. State of Rajasthan, AIR 1951 SC 467, held that natural justice requires a law to be promulgated or published before it becomes operative, broadcast in some recognisable way so that all may know what it is, or at least made discoverable through a customary channel by the exercise of due and reasonable diligence. An unpublished Resolution enacting the Jaipur Opium Act was therefore not a valid law. Where the parent Act prescribes publication in the Official Gazette, that mode must be followed, and internal circulation among officials is not sufficient.

3. What is meant by previous publication, and what happens if it is omitted? Previous publication means publishing the draft of a proposed rule, inviting objections and suggestions, and considering them before the rule is made. Section 23 of the General Clauses Act 1897 supplies the machinery where an Act requires rules to be made after previous publication: the draft is published in the prescribed manner, a date is specified by which objections will be considered, and objections received before that date must be considered. Where the requirement is mandatory, as it ordinarily is, omitting it makes the rule procedurally ultra vires and void.

4. Does a duty to consult oblige the authority to accept the views it receives? No. The duty is to consult with an open mind and to give genuine consideration to what is said. The authority remains free to make the rule it considers right, and a rule is not invalid merely because objections were rejected. What is not compliance is going through the form without the substance, such as receiving objections and making the rule the same day without considering them.

5. Why is consultation not the same as a hearing under natural justice? Because they arise in different situations and come from different sources. Consultation belongs to rule making, in which a general rule affects a class of persons defined by description, and the duty arises from the parent Act. A hearing under natural justice belongs to a determination affecting an identified person, and the duty arises from the common law and from Articles 14 and 21 of the Constitution. Natural justice does not ordinarily apply to rule making at all, which is why the legislature supplies consultation as a statutory substitute.

3. The statute. Many Acts prescribe their own procedure. Where they do, that procedure governs, and natural justice fills the gaps rather than displacing what the statute says.

The nature of the principles

Four propositions, each of which is examinable.

They are not embodied rules and have no fixed content

Facts. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, concerned the Industries (Development and Regulation) Act 1951, which allows the Union in the public interest to take under its control the industries in the First Schedule, of which item 23 is textiles. Section 15 permits a full investigation where the Government is of opinion that production has substantially fallen, quality has markedly deteriorated, prices have risen without justification, resources of national importance need conserving, or an undertaking is being managed in a manner highly detrimental to the industry or to the public interest, and section 16 permits directions afterwards. The Central Government took over the management of the company's undertaking under section 18AA(1)(a) without any prior investigation and without hearing the company.

Held. By the majority, Chinnappa Reddy J dissenting, there had been non-compliance with the implied requirement of the audi alteram partem rule at the pre-decisional stage, and the order could have been struck down on that ground alone; in view of the concession that a hearing would be given, the case was remitted for a full, fair and effective hearing. The phrase natural justice is not capable of a static and precise definition and cannot be imprisoned in the straitjacket of a cast-iron formula; its rules are not embodied rules and no exhaustive catalogue of them can be made. The two fundamental maxims are audi alteram partem and nemo judex in re sua. Audi alteram partem is a rule devised to ensure that a statutory authority arrives at a just decision and to act as a healthy check on the abuse or misuse of power, and its reach should not be narrowed nor its applicability circumscribed. The rules of natural justice operate only in areas not covered by any validly made law, and a statutory provision may exclude them specifically or by inevitable implication.

Why it matters. It is the fullest Indian statement of the nature of the principles, and it supplies the two limits that matter: natural justice yields to a valid statute, and a statute excludes it only by express words or inevitable implication.

They apply to administrative action, not only to quasi-judicial action

This is the largest development in the modern law and it happened in two steps.

Facts. A.K. Kraipak v. Union of India, AIR 1970 SC 150, concerned a Special Selection Board constituted to select officers of the Jammu and Kashmir forest department for the Indian Forest Service. One member was the Acting Chief Conservator of Forests, who was himself a candidate and had obtained his acting post by superseding another Conservator whose appeal was pending. He withdrew when his own name was considered but sat when his rivals' claims were considered and when the order of preference was settled. He was placed at the top; three rivals were left out. Those left out petitioned under Article 32.

Held. The rules of natural justice operate in areas not covered by any validly made law and supplement rather than supplant it. There is no reason why they should not apply to administrative proceedings as well as quasi-judicial ones, especially as it is not easy to draw the line demarcating the two, and an unjust decision in an administrative enquiry may have a more far reaching effect than one in a quasi-judicial enquiry. What rule of natural justice applies depends on the facts, the framework of the law and the constitution of the body concerned. On the facts there was a conflict between interest and duty, the member was a judge in his own cause, and his participation must have influenced the result.

Then the second step.

Facts. Maneka Gandhi v. Union of India, AIR 1978 SC 597, concerned a passport issued to the petitioner in June 1976 and impounded in July 1977 by an order under section 10(3)(c) of the Passports Act 1967 which said only that it was done "in public interest". She was given no hearing, and when she asked for reasons the Government declined to give them, saying it was not in the interest of the general public to do so.

Held. Article 14 strikes at arbitrariness in State action: equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch. The procedure contemplated by Article 21 must answer the test of reasonableness in order to conform to Article 14, and it must be right and just and fair, and not arbitrary, fanciful or oppressive. The Passports Act does not provide for a hearing before impounding, but that is not conclusive: even where a statute is silent the law may imply the principle and apply it, natural justice being a great humanising principle intended to invest law with fairness. There can be no distinction between a quasi-judicial function and an administrative function for this purpose.

Why it matters. Together these two cases moved natural justice from a rule attaching to a category of decision into a general requirement of fair administrative procedure with a constitutional foundation. After them the question is not "was this quasi-judicial?" but "what did fairness require here?"

They apply where rights or legitimate expectations are affected

Natural justice is not owed to the world. It is owed to a person whose rights, interests or legitimate expectations are affected by the decision. That is why it does not attach to rule making, which affects a class: [Classification of Administrative Functions].

The interests protected extend well beyond legal rights in the strict sense: a licence, a job, a seat in a college, a pension, membership of a body, a reputation, and a legitimate expectation of a benefit or of a procedure are all sufficient.

They may be excluded, but only clearly

Because natural justice fills gaps rather than overriding statutes, a statute can displace it. But the displacement must be by express words or inevitable implication, and a court will not infer it lightly, because the presumption is that the legislature intends fair procedure. The recognised situations are treated in [Exceptions to the Principles of Natural Justice].

The third principle: reasons

Indian law now treats the duty to give reasons as a third requirement, and it is treated in [Reasoned Decisions]. It is convenient to note here that the two classical maxims are a pair from the common law and that reasons is an Indian and modern addition, since an examiner asking for "the principles of natural justice" expects all three.

The scope: where natural justice applies

A worked example

The University withdraws Anjali Rane's admission to a postgraduate course six months into the year, on the ground that her marksheet was found to be irregular. She is sent a one-line letter and is not told what irregularity is alleged.

Is natural justice owed? Yes. An admission already granted is an interest, and cancelling it affects her directly. It does not matter whether the Registrar's act is classified as administrative or quasi-judicial, because after A.K. Kraipak v. Union of India, AIR 1970 SC 150, and Maneka Gandhi v. Union of India, AIR 1978 SC 597, the distinction does not decide the question.

What does it require here? Notice of the specific irregularity alleged, disclosure of the material relied on, which means the report on the marksheet, an opportunity to answer, a decision by somebody not personally involved in the allegation, and reasons.

Does it require an oral hearing, a lawyer and cross-examination? Not necessarily. That is what "no fixed content" means: the requirements scale with what is at stake and with the nature of the dispute. Where the allegation is of forgery and the evidence is a witness, cross-examination may be needed; where it is a mismatch between two documents, written representations may be enough.

What if the University's statute says the Registrar may cancel an admission "without notice"? Then the statute has excluded natural justice expressly, and the question becomes whether that exclusion is constitutional under Articles 14 and 21, which after Maneka Gandhi it may well not be.

What it does NOT mean

It does not mean a full trial. Natural justice is a minimum standard, not the Code of Civil Procedure. It does not import pleadings, oral evidence on oath, or the law of evidence.

It does not mean the decision must be favourable. It governs how the decision is reached, not what it is. An authority that hears fairly and decides against the person has complied.

It does not mean natural law. The phrase is a term of art meaning fair procedure.

It does not apply to everything. Rule making, ministerial acts and, in the recognised cases, emergencies are outside it.

Quick revision

1. Two maxims: nemo judex in causa sua, no one a judge in his own cause; audi alteram partem, hear the other side. Indian law adds reasons as a third principle.
2. Sources: the common law; the Constitution, Articles 14, 21 and 311; and the statute in question.
3. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818: natural justice is not capable of a static and precise definition, cannot be imprisoned in a cast-iron formula, and its rules are not embodied rules; it operates only in areas not covered by a valid law and can be excluded specifically or by inevitable implication.
4. A.K. Kraipak v. Union of India, AIR 1970 SC 150: it applies to administrative as well as quasi-judicial proceedings, because the line between them is not easy to draw.
5. Maneka Gandhi v. Union of India, AIR 1978 SC 597: the procedure under Article 21 must be right, just and fair; natural justice may be implied into a silent statute; there is no distinction between quasi-judicial and administrative functions for this purpose.
6. It protects rights, interests and legitimate expectations, and does not attach to rule making.
7. It is a minimum standard of procedure, not a trial, and it governs how a decision is reached and not what it is.

Test yourself

1. What is meant by the principles of natural justice? State their nature. They are the minimum standards of fair procedure required of an authority deciding a matter affecting a person's rights or interests, resting on the maxims nemo judex in causa sua and audi alteram partem, to which Indian law adds a duty to give reasons. Their nature was described in Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818: they are not embodied rules, they cannot be reduced to an exhaustive catalogue or imprisoned in a cast-iron formula, and what they require depends on the facts, on the framework of the statute and on the constitution of the deciding body. They operate only in areas not covered by a validly made law, and a statute may exclude them expressly or by inevitable implication.

2. Do the principles of natural justice apply to administrative action? Yes. Formerly they attached only to judicial and quasi-judicial acts. In A.K. Kraipak v. Union of India, AIR 1970 SC 150, the Supreme Court held that they apply to administrative proceedings as well, because the line demarcating administrative from quasi-judicial enquiries is not easy to draw and an unjust decision in an administrative enquiry may have a more far reaching effect. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, the Court held that there can be no distinction between a quasi-judicial function and an administrative function for this purpose, and that natural justice may be implied even where the statute is silent.

3. What is the constitutional basis of natural justice in India? Article 14, which strikes at arbitrariness in State action, so that an unfair procedure is itself arbitrary; Article 21, under which a deprivation of life or personal liberty must be by a procedure established by law, which after Maneka Gandhi v. Union of India, AIR 1978 SC 597, must be right, just and fair and not arbitrary, fanciful or oppressive; and Article 311, which writes a specific hearing requirement into the Constitution for civil servants. This constitutional basis is what distinguishes the Indian position from the English, where the rules rest on the common law alone.

4. Can natural justice be excluded by statute? Yes, but only clearly. Natural justice supplements the law and does not supplant it, so it yields to a validly made statutory provision. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, holds that exclusion must be either specific or by inevitable implication, and courts will not infer it lightly, because the presumption is that the legislature intends a fair procedure. Even an express exclusion remains open to challenge under Articles 14 and 21.

5. "Natural justice has no fixed content." Explain. The requirements vary with the situation. What fairness demands depends on the facts of the case, on the framework of the law under which the enquiry is held and on the constitution of the body deciding, as A.K. Kraipak v. Union of India, AIR 1970 SC 150, put it. A serious charge affecting livelihood, turning on the evidence of a witness, may require an oral hearing with an opportunity to cross-examine; a narrow question turning on documents may require no more than an opportunity to make written representations. That is why Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, said the principles cannot be imprisoned in the straitjacket of a cast-iron formula.

Held. The rules of natural justice operate in areas not covered by any validly made law and supplement rather than supplant it, and there is no reason why they should not apply to administrative proceedings as well as quasi-judicial ones. The rule that enquiries must be held in good faith and without bias is part of natural justice. On the facts there was a conflict between the member's interest and his duty and he was a judge in his own cause; taking human probabilities and the ordinary course of human conduct into account, there was reasonable ground for believing that he was likely to have been biased. Although he did not sit when his own name was considered, his membership of the Board and his participation when his rivals' claims were considered and when the list was prepared must have had an impact, because in group discussions each member is bound to influence the others in a subtle manner, without their being aware of such influence. The selection could not be regarded as having been made fairly and justly.

Why it matters. It is the leading Indian case on personal bias, and three points in it are examinable. First, withdrawing from part of the process is not enough if you sit for the rest. Second, the Court did not require proof of actual influence; it reasoned from human probabilities. Third, affidavits from the other members saying they were not influenced did not save the selection, because the influence is subtle and the members would not be aware of it.

3. Subject matter bias

Where the decision maker has an interest in the subject rather than in the parties: he is connected with the institution whose conduct is in question, or has been involved in the events leading to the dispute, or has some stake in the general question.

Mere general interest is not enough; a departmental officer does not become disqualified simply because the department has a view. What disqualifies is a direct connection with the particular matter.

4. Departmental or institutional bias

This is the structural problem of administrative adjudication and it is worth a paragraph of its own because it is what distinguishes administrative law from ordinary procedure.

In a great deal of administrative decision making the same department investigates, prosecutes and decides. A Commissioner orders an inspection, receives the inspector's report, and then decides whether to cancel the licence. On a strict application of the rule against bias, that arrangement is objectionable.

The law's answer is that where the statute itself creates the arrangement, it cannot be attacked as bias, because natural justice cannot be used to defeat the scheme the legislature has enacted. But two safeguards remain: the same individual should not perform inconsistent roles, so the officer who investigated should not be the one who decides; and the person affected must still get the substance of a hearing.

5. Policy bias, and the necessity exception

A decision maker who has publicly committed himself to a view on the very question is disqualified. But a prior general policy position is not bias: a minister who has announced a policy is expected to have one, and if that disqualified him no decision could ever be taken.

The doctrine of necessity is the recognised exception to the whole rule. Where the person alleged to be biased is the only authority competent to decide, and there is no lawful alternative, he may decide despite the interest, because otherwise the matter could never be decided at all. Necessity does not licence bad faith; it merely prevents the rule against bias defeating the administration of justice.

The tests

Two formulations appear in the cases, and a student should be able to state both and say how they relate.

In practice the two rarely produce different results, because both are applied from the standpoint of the reasonable and informed observer rather than that of the litigant. Kraipak is usually read as applying the real likelihood test, reasoning from human probabilities and the ordinary course of human conduct.

A worked example

The Municipal Corporation invites tenders for a solid waste contract. The Tender Committee has three members: the Municipal Commissioner, the Chief Engineer, and the Chairman of the Standing Committee. Consider each of these facts separately.

1. The Chief Engineer holds 200 shares in one of the bidding companies. Pecuniary bias. He is disqualified whatever the size of the holding, and the award is liable to be set aside.
2. The Chairman's brother is a director of one bidder. Personal bias. The question is one of degree, but a sibling of a director of a bidder would ordinarily give rise to a real likelihood of bias.
3. The Commissioner wrote the report that recommended outsourcing the service. Not bias. That is a general policy position, and holding one is part of his job.
4. The Commissioner had earlier issued a show cause notice to one bidder alleging fraud, and now sits to judge that bidder's eligibility. Departmental bias in its objectionable form: the same individual is accuser and judge. Even if the statute makes him the deciding authority, another officer should take the decision if the statute allows it.
5. The Chairman withdraws while the tender of his brother's company is considered but sits for the others and for the final ranking. This is Kraipak exactly, and it does not save the decision.
6. The statute provides that the Commissioner alone shall decide, and he has the disqualifying interest. The doctrine of necessity may allow him to decide, because otherwise there is no authority at all; but the interest should be disclosed and the reasons recorded.

Distinctions worth having straight

What it does NOT mean

It does not mean the decision maker must have no opinions. A policy position is not bias.

It does not mean bias must be proved to have operated. A real likelihood, judged from outside, is enough.

It does not mean an allegation of bias is an allegation of corruption. It is a statement about position, not about character.

It does not mean the objection can be kept in reserve. A party who knows of the disqualifying interest and takes part without objecting may be held to have waived it, and cannot complain only after losing.

Quick revision

1. Nemo judex in causa sua: no one a judge in his own cause. Justice must be seen to be done.
2. Five kinds: pecuniary, personal, subject matter, departmental or institutional, and policy bias.
3. Pecuniary bias disqualifies however small the interest; there is no de minimis rule.
4. Personal bias is a question of degree, tested by real likelihood.
5. A.K. Kraipak v. Union of India, AIR 1970 SC 150: a candidate sitting on the selection board; withdrawing for his own case did not cure it, because in group discussion each member influences the others subtly and without awareness; affidavits denying influence did not save it.
6. Two tests: real likelihood of bias, and reasonable suspicion of bias, both judged by the reasonable informed observer.
7. Exceptions: a general policy position is not bias; departmental combination of functions created by statute is not bias, though the same individual should not perform inconsistent roles; and the doctrine of necessity allows the only competent authority to decide.
8. Bias may be waived by a party who knows and does not object.

Test yourself

1. Explain the rule against bias and its kinds. The rule, expressed as nemo judex in causa sua, requires that no person be a judge in his own cause and that the decision maker have no interest in the subject matter or the parties. It is enough that there is a real likelihood or reasonable suspicion of bias judged by a reasonable and informed observer, because justice must be seen to be done, and proof that the decision was actually influenced is not required. The kinds are pecuniary bias, which disqualifies however small the interest; personal bias, arising from kinship, friendship, hostility or rivalry, which is a question of degree; subject matter bias, where the decision maker is directly connected with the matter in issue; departmental or institutional bias, where the same body investigates and decides; and policy bias, where the decision maker has committed himself to a view on the very question, though holding a general policy is not bias.

2. Discuss A.K. Kraipak's case on bias. A Special Selection Board was constituted to select officers of the Jammu and Kashmir forest department for the Indian Forest Service. One member, the Acting Chief Conservator of Forests, was himself a candidate, and had obtained his acting post by superseding another Conservator whose appeal was pending. He withdrew when his own name was considered but sat when his rivals' claims were considered and when the order of preference was settled; he was placed at the top and three rivals were left out. The Supreme Court held that the rule that enquiries be held in good faith and without bias is part of natural justice, that there was a conflict between his interest and duty so that he was a judge in his own cause, and that on human probabilities there was reasonable ground for believing he was likely to have been biased. Withdrawal from part of the process did not cure it, because in group discussions each member is bound to influence the others in a subtle manner without their being aware of it, and affidavits from the other members denying influence did not save the selection.

3. State the tests for bias. Two formulations are used. The real likelihood test asks whether a reasonable person, knowing the relevant facts, would think there was a real likelihood that the authority would be biased. The reasonable suspicion test asks whether a reasonable person would suspect bias, and sets a slightly lower threshold. Both are applied from the standpoint of the reasonable and informed observer rather than the litigant, and in practice they rarely produce different results. Indian courts have generally applied the real likelihood test, as in A.K. Kraipak v. Union of India, AIR 1970 SC 150.

4. What is the doctrine of necessity in relation to bias? Where the person said to be biased is the only authority competent to decide the matter, and there is no lawful alternative, he may decide despite the interest, because otherwise the matter could never be decided at all and the rule against bias would defeat the administration of justice. The doctrine does not licence bad faith, and good practice requires the interest to be disclosed and the reasons recorded.

5. Is the combination of investigating and deciding functions in one department a breach of the rule against bias? Not where the statute itself creates that arrangement, because natural justice supplements the law and cannot be used to defeat the scheme the legislature has enacted. Two safeguards remain: the same individual should not perform inconsistent roles, so the officer who investigated or issued the show cause notice should not, where the statute permits an alternative, be the one who decides; and the person affected must still receive the substance of a fair hearing.

The organising idea is that the hearing must be effective, not merely formal. The test is whether the person had a real opportunity to influence the outcome.

The leading case on an implied right to be heard

Facts. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, concerned the Industries (Development and Regulation) Act 1951, under which the Union may in the public interest take under its control the industries in the First Schedule, item 23 being textiles. Section 15 permits a full and complete investigation where the Central Government is of opinion that there has been or is likely to be a substantial fall in production without justification, a marked deterioration in quality, an unjustified rise in price, a need to conserve resources of national importance, or that an undertaking is being managed in a manner highly detrimental to the scheduled industry or to the public interest. Section 16 permits directions after such an investigation. The Central Government took over the management of the company's undertaking under section 18AA(1)(a), which does not in terms require an investigation, without holding one and without hearing the company.

Held. By the majority, Chinnappa Reddy J dissenting, there had been non-compliance with the implied requirement of the audi alteram partem rule at the pre-decisional stage, and the order could have been struck down as invalid on that ground alone; in view of the concession that a hearing would be afforded, the case was remitted to the Central Government to give a full, fair and effective hearing. The phrase natural justice is not capable of a static and precise definition and cannot be imprisoned in the straitjacket of a cast-iron formula, and its rules are not embodied rules. The two fundamental maxims are audi alteram partem and nemo judex in re sua. Audi alteram partem is a highly effective rule devised to ensure that a statutory authority arrives at a just decision, and is calculated to act as a healthy check on the abuse or misuse of power; its reach should not be narrowed and its applicability should not be circumscribed. The rules of natural justice operate only in areas not covered by any validly made law, and a statutory provision may exclude them specifically or by inevitable implication.

Why it matters. Section 18AA said nothing about a hearing, and the Government argued that Parliament had deliberately provided for takeover without the investigation required elsewhere in the Act. The Court read the hearing in anyway. That is the practical importance of the case: silence in a statute is not exclusion, and the burden is on the authority to show express words or inevitable implication.

The constitutional foundation

Facts. Maneka Gandhi v. Union of India, AIR 1978 SC 597, concerned a passport issued in June 1976 and impounded in July 1977 by an order under section 10(3)(c) of the Passports Act 1967 stating only that it was done "in public interest". The petitioner was given no opportunity to be heard, and when she asked for the reasons the Government declined to supply them, saying it was not in the interest of the general public to do so. Section 5(3) of the Act requires reasons to be recorded where a passport is refused.

Held. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment; equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch. The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14, and it must be right and just and fair, and not arbitrary, fanciful or oppressive. The Passports Act does not provide for a reasonable opportunity to be heard in advance of impounding, but that is not conclusive of the question: even where the statute is silent, the law may in a given case make an implication and apply the principle, natural justice being a great humanising principle intended to invest law with fairness. There can be no distinction between a quasi-judicial function and an administrative function for this purpose.

Why it matters. It put audi alteram partem on a constitutional footing. After it, a statutory procedure that denies a hearing is not merely contrary to the common law; it is open to challenge under Articles 14 and 21 as a procedure that is not right, just and fair.

A worked example

The Regional Transport Authority proposes to cancel the permit of Bhosale Travels on the ground of repeated overloading. Work through what a fair procedure requires.

Notice. A letter stating the dates and vehicle numbers of the alleged overloading, the provision under which cancellation is proposed, and that cancellation is the action contemplated. A letter saying "your conduct has been unsatisfactory, show cause why action should not be taken" would fail on specificity.

Disclosure. Copies, or at least the substance, of the inspectors' reports and the weighbridge records relied on. If the Authority also has an anonymous complaint on the file and intends to act on it, that must be disclosed too, though the identity of the complainant may in some circumstances be withheld.

Time. A reasonable period to reply, measured against the volume of material.

Hearing. Written representations at minimum. If Bhosale Travels disputes that its vehicle was at the weighbridge on a given date and the Authority intends to rely on an inspector's oral account, an oral hearing with an opportunity to question the inspector is likely to be required, because the decision then turns on whom to believe.

The decision maker. The officer who hears should decide. If Officer A hears the matter and Officer B, who was not present, passes the order on the file, the hearing has been wasted.

Reasons. An order stating why the explanation was rejected.

Now vary it. Suppose the statute says the Authority "may cancel a permit forthwith, without notice, where it is satisfied that continued operation would endanger public safety". Here the exclusion is express and is justified by urgency, so a pre-decisional hearing is excluded; but a post-decisional hearing will ordinarily be required, and the exclusion itself must satisfy Articles 14 and 21: [Exceptions to the Principles of Natural Justice].

The elements that are not automatic

Students commonly overstate the rule, so three limits are worth stating plainly.

There is no general right to an oral hearing. Written representations satisfy the rule in a great many administrative contexts. An oral hearing is required where the facts are disputed or the consequences are grave.

There is no general right to legal representation. The starting point is that a person may present his own case. Representation is allowed where the statute provides it, and is required in fairness where the matter is legally or factually complex, where the other side is represented by a lawyer, or where the consequences are very serious.

There is no general right to cross-examine. It arises where the decision depends on the truthfulness of a witness whose evidence is relied on.

Distinctions worth having straight

What it does NOT mean

It does not mean a trial. The rule requires a fair opportunity, not the procedure of a civil court.

It does not mean the authority must agree. It must consider, not accept.

It does not mean silence in the statute excludes the rule. Swadeshi Cotton Mills and Maneka Gandhi both hold the opposite.

It does not mean every procedural slip invalidates the decision. Where the breach made no difference, the effect is the subject of [The Effect of a Failure of Natural Justice].

Quick revision

1. Audi alteram partem: hear the other side. Two limbs, notice and hearing.
2. Notice must be prior, specific, allow reasonable time, and disclose the material relied on.
3. The hearing must be effective. It may require written representations, an oral hearing, disclosure, evidence in the person's presence, cross-examination, representation, decision by the person who heard, and reasons.
4. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818: audi alteram partem was implied into section 18AA of the Industries (Development and Regulation) Act 1951; natural justice cannot be imprisoned in a cast-iron formula; exclusion must be specific or by inevitable implication.
5. Maneka Gandhi v. Union of India, AIR 1978 SC 597: the procedure under Article 21 must be right, just and fair; natural justice may be implied where the statute is silent; no distinction between quasi-judicial and administrative functions.
6. No automatic right to an oral hearing, to a lawyer or to cross-examination; each arises where fairness on the facts requires it.
7. He who hears must decide.

Test yourself

1. Explain the rule audi alteram partem and its contents. It means hear the other side, and requires that a person whose rights or interests are to be affected be given notice and an opportunity to answer before the decision is taken. Notice must be given before the decision, must be specific as to the charge, the grounds and the action proposed, must allow reasonable time, and must disclose the material relied on, since a person cannot answer evidence he has not seen. The hearing must be effective rather than formal, and may require written representations, an oral hearing where facts are disputed or the stakes are high, the taking of evidence in the person's presence, cross-examination where credibility is in issue, legal representation where the matter is complex or the other side is represented, a decision by the authority that heard the matter, and reasons.

2. Can the right to be heard be implied where the statute is silent? Yes. In Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, the Government took over an undertaking under section 18AA of the Industries (Development and Regulation) Act 1951, a provision which required no prior investigation and said nothing about a hearing, and the Supreme Court held that the audi alteram partem rule was implied at the pre-decisional stage and had not been complied with. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, the Court held that although the Passports Act 1967 did not provide for a hearing before impounding a passport, that was not conclusive, and that even where the statute is silent the law may make an implication and apply the principle. Exclusion requires express words or inevitable implication.

3. Is there a right to legal representation before an administrative authority? Not as of right. The starting position is that a person may present his own case, and many statutes exclude representation expressly. Fairness will nevertheless require it in particular circumstances: where the matter is legally or factually complex, where the authority or the opposing side is represented by a lawyer, where the person is unable to present his own case, or where the consequences are grave. The question is always whether, without representation, the person had a real opportunity to answer.

4. Must adverse material be disclosed to the person affected? Yes, where the authority relies on it. A hearing is meaningless if the decision rests on material the person has never seen and has had no chance to explain or contradict. The requirement extends to inspection reports, audit notes, complaints and expert opinions relied on. In limited cases the source may be protected while the substance is disclosed, but withholding the substance altogether and then acting on it is a breach of the rule.

5. "He who hears must decide." Explain. Where an oral hearing is held, the authority that heard the person should be the one that takes the decision, because the value of an oral hearing lies in the impression the explanation makes on the mind of the decision maker. If one officer conducts the hearing and another, who was not present, passes the order on the file, the hearing has served no purpose and the requirement of an effective opportunity has not been met. The rule does not prevent a decision on written representations by an officer who has read them, since there is nothing in that case which only presence could convey.

Held. The requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions, irrespective of whether the decision is subject to appeal, revision or judicial review. The reasons need not be as elaborate as those in the decision of a court of law; their extent and nature depend on the particular facts and circumstances. What is necessary is that the reasons be clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording reasons is greater where the order is passed at the original stage, and an appellate or revisional authority which affirms such an order need not give separate reasons if it agrees with the reasons contained in the order under challenge. Except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. On the statutory scheme, however, the provisions of the Army Act 1950 and the Army Rules 1954 negative any requirement that a court martial give reasons for its findings and sentence, and reasons are not required where the court martial makes a recommendation to mercy.

Why it matters. Three points, and the third is the one students miss.

1. It states the general rule: reasons are required of a quasi-judicial administrative authority.
2. It settles that the duty does not depend on the existence of an appeal. The older view had been that reasons mattered only because an appellate body needed them; this holds that they are required anyway.
3. It shows the duty being displaced. On the actual facts the Court held that the Army Act scheme negatived the requirement. So the case is authority both for the rule and for its limits, and an answer that cites it only for the rule has read half of it.

What reasons must contain

The standard is proportionate, not perfectionist.

The last row is worth emphasising. Reasons supplied for the first time in a counter affidavit filed after a challenge are not the reasons for the order; they are an explanation constructed afterwards, and courts treat them with suspicion.

Where reasons are not required

1. Where a statute expressly dispenses with them.
2. Where the statutory scheme necessarily implies that none are required, as the Army Act was held to do in S.N. Mukherjee.
3. In legislative functions. A rule maker does not give reasons for a rule, because rule making is not a determination of an individual case: [Classification of Administrative Functions].
4. Where the affirming authority agrees with the order below. S.N. Mukherjee holds expressly that an appellate or revisional authority need not give separate reasons if it agrees with the reasons in the order under challenge.
5. In some ministerial acts, where there is no discretion and so nothing to explain.

Note what is not on this list: the absence of an appeal. That is precisely what S.N. Mukherjee rejected.

The statutory reinforcement

Two provisions are worth knowing because they show the duty spreading beyond the case law.

Section 5(3) of the Passports Act 1967 requires the Passport Authority, where it refuses to issue a passport or to make an endorsement, to record in writing a brief statement of its reasons. That provision is part of the background to Maneka Gandhi v. Union of India, AIR 1978 SC 597, where the Government impounded a passport and then declined to give reasons.

Section 4(1)(d) of the Right to Information Act 2005 obliges every public authority to provide reasons for its administrative or quasi-judicial decisions to affected persons. That is a general statutory duty to give reasons, running alongside the common law one, and it is treated in [Obligations of Public Authorities and How a Request Is Made].

A worked example

The Charity Commissioner rejects an application by a trust to sell a plot of land. Consider four possible orders.

Order 1. "Application rejected." Bad. No reasons at all. Nobody can tell whether the Commissioner considered the valuation, the objections, or anything.

Order 2. "Having considered the material on record and the submissions of the parties, and in the interest of the trust, the application is rejected." Still bad. This recites that reasons exist without giving any. Formulaic recitals are the commonest defect in practice, and they fail the test that the order be clear and explicit as to the points in controversy.

Order 3. "The trust seeks permission to sell at Rs.40 lakh. The Government valuation is Rs.72 lakh. The trust's explanation that the plot is landlocked is not supported by the survey plan, which shows a nine metre access road on the eastern boundary. The sale is therefore not in the interest of the trust and permission is refused." Good. It states the point in controversy, the material, the reasoning and the conclusion, and it is short.

Order 4. Order 1 is passed, the trust challenges it, and the Commissioner files an affidavit in the High Court setting out the reasoning in Order 3. Not a cure. The reasons must be contemporaneous with the order; reasons constructed after a challenge are not the reasons on which the order was made.

Notice that Order 3 is barely longer than Order 2. Giving reasons is not a matter of length.

Distinctions worth having straight

What it does NOT mean

It does not mean an authority must write a judgment. Reasons proportionate to the matter suffice, and S.N. Mukherjee says so expressly.

It does not mean every order needs reasons. Legislative acts, ministerial acts and statutorily exempted decisions do not.

It does not mean the duty depends on there being an appeal. S.N. Mukherjee holds that it does not.

It does not mean an appellate authority must repeat the reasoning below. If it agrees, it may say so.

Quick revision

1. A speaking order discloses its reasons on its face.
2. Four purposes: to discipline the decision maker, to make review possible, to satisfy the person affected, and to exclude arbitrariness under Article 14.
3. S.N. Mukherjee v. Union of India, AIR 1990 SC 1984: reasons are required of an administrative authority exercising quasi-judicial functions irrespective of whether an appeal, revision or judicial review lies; they need not be as elaborate as a court's but must be clear and explicit enough to show due consideration of the points in controversy; the need is greater at the original stage; an affirming appellate authority need not give separate reasons; and the requirement may be dispensed with expressly or by necessary implication, as the Army Act 1950 and Army Rules 1954 were held to do.
4. Reasons must be contemporaneous; those supplied later by affidavit do not cure a non-speaking order.
5. Not required for legislative acts, ministerial acts, or where the statute excludes them.
6. Statutory reinforcement: section 5(3) of the Passports Act 1967, and section 4(1)(d) of the Right to Information Act 2005.

Test yourself

1. Is an administrative authority bound to give reasons for its decision? Yes, as a general rule. S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, held that except where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision, and that this is so irrespective of whether the decision is subject to appeal, revision or judicial review. The reasons need not be as elaborate as those of a court; what is necessary is that they be clear and explicit so as to indicate that the authority has given due consideration to the points in controversy, and their extent depends on the facts of the case.

2. Why is the requirement of reasons treated as a principle of natural justice? Because it serves the same purpose as the other two. It disciplines the decision maker, who must work out his reasoning in order to record it; it makes review effective, since without reasons a court cannot tell whether relevant considerations were taken into account; it satisfies the person affected, who can then accept or answer the decision; and it excludes arbitrariness, which Article 14 forbids, since an unexplained order cannot be distinguished from a whim. Indian law therefore treats it as a third principle alongside nemo judex in causa sua and audi alteram partem.

3. When are reasons not required? Where a statute expressly dispenses with them; where the statutory scheme necessarily implies that none are required, as the Supreme Court held of the Army Act 1950 and the Army Rules 1954 in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984; for legislative functions such as rule making, which do not determine an individual case; for ministerial acts, where there is no discretion; and, in the case of an appellate or revisional authority, where it affirms the order below and agrees with the reasons already given in it.

4. Can reasons be supplied later in an affidavit before the court? No. Reasons must be contemporaneous with the order, because they are the justification on which the order was in fact made. Reasons produced for the first time in a counter affidavit after the order is challenged are an explanation constructed afterwards, and they do not convert a non-speaking order into a speaking one.

5. Does the duty to give reasons depend on there being a right of appeal? No. The older view was that reasons mattered chiefly because an appellate authority needed them, so that where there was no appeal there was no need. S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, rejected that, holding that the requirement governs the decisions of an administrative authority exercising quasi-judicial functions irrespective of whether the decision is subject to appeal, revision or judicial review.

Held. Article 14 strikes at arbitrariness in State action; equality and arbitrariness are sworn enemies. The procedure contemplated by Article 21 must answer the test of reasonableness in order to conform to Article 14, and must be right and just and fair and not arbitrary, fanciful or oppressive. The Passports Act does not provide for a reasonable opportunity to be heard before a passport is impounded, but that is not conclusive: even where a statute is silent the law may in a given case make an implication and apply the principle, natural justice being a great humanising principle intended to invest law with fairness. There is no distinction between a quasi-judicial function and an administrative function for this purpose.

Why it matters here. The order was not quashed. The Attorney General gave an undertaking that the petitioner would be afforded an opportunity to be heard and that the Government would consider her representation, and on that footing the Court did not strike the order down. That is the post-decisional hearing in operation: the requirement of fairness was satisfied by a hearing after the event, in circumstances where the Act itself contemplated immediate impounding.

Facts. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, concerned the Industries (Development and Regulation) Act 1951. Section 15 permits a full investigation where the Central Government forms one of the opinions specified, and section 16 permits directions afterwards. The Central Government took over the management of the company's undertaking under section 18AA(1)(a), which contains no requirement of a prior investigation, without holding one and without hearing the company.

Held. By the majority, Chinnappa Reddy J dissenting, there had been non-compliance with the implied requirement of the audi alteram partem rule at the pre-decisional stage, and the impugned order could have been struck down as invalid on that score alone; but in view of the commitment that a hearing would be afforded to the company, the case was remitted to the Central Government to give a full, fair and effective hearing. Natural justice is not capable of a static and precise definition and cannot be imprisoned in the straitjacket of a cast-iron formula; its rules are not embodied rules. Audi alteram partem is a highly effective rule devised to ensure that a statutory authority arrives at a just decision and to act as a healthy check on the abuse or misuse of power, and its reach should not be narrowed nor its applicability circumscribed. The rules of natural justice operate only in areas not covered by a validly made law, and a statutory provision may exclude them specifically or by inevitable implication.

Why it matters. It is the clearest statement of the Indian position, and it says two things at once. The right is to a pre-decisional hearing, and its denial would by itself have invalidated the order. A post-decisional hearing was accepted only because it was offered and because the Court could direct that it be full, fair and effective. The three adjectives are the test, and they should be quoted.

When a post-decisional hearing is acceptable

When it is not acceptable

1. Where there was no urgency. Administrative convenience is not urgency, and a hearing is not dispensed with merely because it would take time.
2. Where the hearing offered is not full, fair and effective, for example where the authority receives a representation and rejects it without considering it, or where the decision has already been implemented irreversibly.
3. Where the damage cannot be undone by revocation. If the business has closed, a later hearing is not a remedy.
4. As a general substitute for the pre-decisional hearing. The rule remains that a hearing comes first.

A worked example

The Food Safety Commissioner receives a laboratory report that a batch of packaged juice contains a prohibited preservative. He orders the immediate seizure of all stock and suspends the manufacturer's licence, without notice.

Seizure. Justified without a prior hearing. Notice would allow the stock to be distributed, which would defeat the purpose of the power and endanger the public. A hearing afterwards, on whether the seizure should continue, satisfies fairness.

Suspension of the licence. More doubtful. If the danger is confined to one batch, seizing that batch protects the public and suspending the whole business is not urgent. Here a pre-decisional hearing on the suspension should have been given, and a post-decisional hearing will not cure its absence, because there was no necessity.

Now suppose the Commissioner gives a hearing a month later, listens for ten minutes, and confirms the suspension in a one-line order. That is not a full, fair and effective hearing within Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818: the manufacturer was not shown the laboratory report, the order gives no reasons, and there is nothing to show the Commissioner considered the representation.

Now suppose the statute says: "The Commissioner may suspend a licence forthwith where he is satisfied that there is imminent danger to public health, and shall within fifteen days give the licensee an opportunity to be heard and thereafter confirm, modify or revoke the order." That is the pattern the law approves: immediate action justified by urgency, a short fixed period, and a genuine reconsideration.

Distinctions worth having straight

What it does NOT mean

It does not mean the authority may choose which to give. The pre-decisional hearing is the rule; a post-decisional hearing must be justified.

It does not mean a post-decisional hearing always cures the defect. It cures it only where the original omission was itself justified, and only where the later hearing is genuine.

It does not mean the order is valid until the hearing. In Swadeshi Cotton Mills the Court said the order could have been struck down for the breach; it was saved by the offer of a hearing, not by a rule that the breach did not matter.

Quick revision

1. A post-decisional hearing is a hearing after the order, given instead of one before it.
2. It exists because some powers must be exercised at once if they are to work at all.
3. Criticisms: minds are closed once a decision is taken, the harm is already done, the burden shifts to the person affected, and it risks swallowing the ordinary rule.
4. Maneka Gandhi v. Union of India, AIR 1978 SC 597: the passport was impounded without a hearing; the order was not quashed because the Government undertook to give a hearing and consider the representation.
5. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818: the right is to a pre-decisional hearing and its denial would have invalidated the order; the case was remitted for a full, fair and effective hearing on the strength of the commitment given.
6. Acceptable where there is genuine urgency, where the statute provides for it, where a prior hearing would frustrate the object, or where the order is interim pending a hearing.
7. Not acceptable where there was no urgency, where the hearing offered is formal only, or where the harm cannot be undone.

Test yourself

1. What is a post-decisional hearing, and when is it permissible? It is an opportunity to be heard given after an order affecting a person has already been passed, in place of a hearing before it. The normal requirement of natural justice is a pre-decisional hearing, and a post-decisional hearing is permitted only by way of exception: where prompt action is necessary in the public interest and delay would defeat the purpose of the power, where the statute expressly provides for immediate action followed by an opportunity to make representations, where a prior hearing would frustrate the object of the order, or where the order is interim and nothing final is done until a hearing has taken place. Even then the hearing must be full, fair and effective, as Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, requires.

2. Discuss the Indian cases on post-decisional hearing. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, a passport was impounded under section 10(3)(c) of the Passports Act 1967 without any hearing and without reasons. The Court held that Article 14 strikes at arbitrariness, that the procedure under Article 21 must be right, just and fair, and that natural justice could be implied although the statute was silent; the order was not quashed because the Government undertook to hear the petitioner and consider her representation. In Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, the Government took over the management of an undertaking under section 18AA(1)(a) of the Industries (Development and Regulation) Act 1951 without investigation or hearing. The majority held that the audi alteram partem rule was implied at the pre-decisional stage, that its breach would by itself have invalidated the order, and remitted the matter for a full, fair and effective hearing in view of the commitment given.

3. State the criticisms of the post-decisional hearing. That an authority which has already decided, and may have implemented its decision publicly, is unlikely to approach the matter with an open mind; that the harm, such as closure of a business or cancellation of a licence, may be irreversible so that a later hearing is no remedy; that the burden shifts, since the person affected must now persuade the authority to undo what it has done rather than to refrain from doing it; and that if it were freely available it would displace the pre-decisional hearing altogether. For these reasons it is treated as an exception which must be justified rather than as an alternative open to the administration.

4. Does a post-decisional hearing always cure a breach of natural justice? No. It cures the breach only where the omission of a prior hearing was itself justified by urgency, statute or the nature of the power, and where the hearing actually given is full, fair and effective, meaning that the material relied on is disclosed, the representation is genuinely considered and reasons are given. Where there was no urgency, or where the hearing is a formality, or where the consequences of the original order cannot be undone, the breach is not cured and the order is liable to be set aside.

5. Draft the kind of statutory provision the courts approve. A provision permitting immediate action on a stated ground of urgency, requiring a hearing within a short fixed period, and requiring the authority thereafter to confirm, modify or revoke the order. For example: the authority may suspend a licence forthwith where satisfied that there is imminent danger to public health, shall within fifteen days give the licensee an opportunity of being heard, and shall thereafter, for reasons recorded in writing, confirm, modify or revoke the order of suspension. This satisfies both the need for immediate action and the requirement of a full, fair and effective hearing.

3. Emergency and urgency

Where immediate action is necessary to protect public health, public safety, public order or the public revenue, a prior hearing may be dispensed with. The seizure of adulterated food, the demolition of a dangerous structure, the suspension of a bank and the closure of a source of infection are the standard examples.

Note the relationship with the previous chapter: urgency ordinarily excludes the pre-decisional hearing only, and a post-decisional hearing is then required: [Post-Decisional Hearing].

The urgency must be real. Administrative convenience, workload, or a wish to avoid argument is not urgency, and a court will examine whether the situation genuinely required immediate action.

4. The useful formality theory

Where a hearing could not have made any difference to the outcome, the courts have sometimes declined to interfere. The classic example is where the facts are admitted and only one legal conclusion is possible.

This exception is the most criticised, and an answer should say why. It invites the authority, and then the court, to decide what the person would have said if he had been heard. That reasoning is circular: the whole purpose of a hearing is that nobody knows in advance what will emerge from it. Indian courts have therefore applied it narrowly, and the safer formulation is that relief may be refused in the court's discretion where the breach has caused no prejudice, rather than that no breach occurred.

5. Legislative action

Natural justice does not apply to rule making, because a rule affects a class defined by description rather than an identified person. Nobody is entitled to be heard before a general rule is made, though the statute may require consultation: [Other Controls: Publication, Consultation and Procedural Safeguards] and [Classification of Administrative Functions].

6. Confidentiality and national security

Where disclosure of the material would itself damage the public interest, the ordinary requirement of disclosure yields. This is closely connected with public interest privilege, treated in [Government Privilege in Legal Proceedings and State Secrets].

Two qualifications matter. The claim must be genuine and is examinable by a court; and, where possible, the substance of the case should be disclosed even if the source is protected, so that the person can answer it.

7. Academic evaluation

The assessment of an examinee's answer script, or of a research student's work, is not a matter for a hearing. Examiners evaluate; they do not adjudicate. But the exception is confined to evaluation. Where a student is charged with misconduct, such as copying, the charge is disciplinary and natural justice applies in full.

8. Admitted facts and no prejudice

Where the person admits the facts on which the action is based, there is nothing to hear him about on those facts, though he may still be entitled to be heard on the penalty.

9. Impracticability

Where the number of persons affected makes individual hearings impossible, or where the person cannot be found, the requirement may be relaxed. This is a genuine but narrow exception, and a general notice or a representative hearing is often the answer rather than no hearing at all.

10. Necessity

Where the authority said to be disqualified for bias is the only one competent to act, it may act, because otherwise the matter could never be decided: [The Rule Against Bias].

11. Interim and preventive orders

An order that is provisional, and that will not become final until the person has been heard, does not require a prior hearing, because nothing is finally determined without one. A suspension pending inquiry is the standard example.

A worked example

The State Government supersedes the elected body of a municipal council and appoints an administrator, acting under a section which says the Government may supersede a council "if in its opinion the council is not competent to perform its duties". No notice is given. Which exception, if any, applies?

Statutory exclusion? No. The section is silent about a hearing, and silence is not exclusion: Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818.

Emergency? Only if the facts show one. If the council has ceased to function and essential services have stopped, immediate action may be justified and a post-decisional hearing will follow. If the ground is the mismanagement of a contract two years ago, there is no urgency and a hearing should have been given.

Legislative action? No. Supersession of a named council is a determination about an identified body, not a general rule.

Useful formality? The Government may argue that the council's incompetence is established by the audit report and a hearing would change nothing. The answer is that the council might have explained the audit findings, so this is precisely the reasoning the courts distrust.

Conclusion. Absent genuine urgency, the order is bad for want of a hearing.

Now vary the facts. The section reads: "The Government may supersede a council forthwith where in its opinion there is a breakdown of civic services endangering public health, and shall thereafter afford the council an opportunity of being heard within thirty days." Now the exclusion is express, it is confined to a defined emergency, and a post-decisional hearing is built in. It is very likely valid.

Distinctions worth having straight

What it does NOT mean

It does not mean silence excludes natural justice. Silence is the situation in which the rules are most often implied.

It does not mean an express exclusion is the end of the matter. It must still satisfy Articles 14 and 21.

It does not mean urgency excludes the hearing altogether. It usually postpones it.

It does not mean the useful formality theory is a general escape. It is applied narrowly, and the safer analysis is the discretionary refusal of relief where no prejudice was caused.

Quick revision

1. Natural justice supplements the law and yields to a valid statute, but exclusion must be specific or by inevitable implication: Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818.
2. An express exclusion must still satisfy Articles 14 and 21 after Maneka Gandhi v. Union of India, AIR 1978 SC 597.
3. The exceptions: statutory exclusion; constitutional exclusion under the second proviso to Article 311(2); emergency; useful formality; legislative action; confidentiality and security; academic evaluation; admitted facts; impracticability; necessity; and interim or preventive orders.
4. Second proviso to Article 311(2): conviction on a criminal charge; not reasonably practicable to hold an inquiry, for reasons recorded; and security of the State.
5. Urgency ordinarily postpones the hearing rather than abolishing it.
6. The useful formality theory is criticised because it requires guessing what the person would have said, and is applied narrowly.
7. Academic evaluation is excluded, but disciplinary proceedings against a student are not.

Test yourself

1. State the exceptions to the principles of natural justice. Express statutory exclusion, or exclusion by inevitable implication from the scheme of the Act; constitutional exclusion, most importantly under the second proviso to Article 311(2); emergency or urgency requiring immediate action; the useful formality theory, where a hearing could not have affected the outcome; legislative action such as rule making, which affects a class and not an individual; confidentiality and the security of the State; academic evaluation as distinct from disciplinary action; cases where the facts are admitted; impracticability, where the numbers affected make individual hearings impossible; the doctrine of necessity, where the authority alleged to be biased is the only one competent to act; and interim or preventive orders which do not finally determine anything.

2. Can a statute exclude natural justice? How clearly must it do so? Yes, because natural justice supplements the law rather than overriding it. But the exclusion must be specific or arise by inevitable implication from the statutory scheme, as Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, holds. Mere silence is not exclusion; in that very case the audi alteram partem rule was read into section 18AA of the Industries (Development and Regulation) Act 1951, which said nothing about a hearing and required no prior investigation. Furthermore, an express exclusion is not immune from challenge: after Maneka Gandhi v. Union of India, AIR 1978 SC 597, a procedure under Article 21 must be right, just and fair, and a provision denying a hearing may itself be unconstitutional under Articles 14 and 21.

3. Explain the useful formality theory and the criticism of it. The theory is that where a hearing could not have made any difference to the result, for example because the facts are admitted and only one conclusion is legally possible, the absence of a hearing does not vitiate the decision. It is criticised because it requires the court to decide what the person would have said had he been heard, which is precisely what nobody can know in advance; the purpose of a hearing is that it may produce something unexpected. Indian courts apply it narrowly, and the sounder formulation is that relief may be refused in the court's discretion where no prejudice was in fact caused, rather than that there was no breach at all.

4. Does urgency dispense with natural justice altogether? Ordinarily not. Urgency excludes the pre-decisional hearing where immediate action is necessary to protect public health, safety, order or revenue and where delay would defeat the purpose of the power. A post-decisional hearing is then required, and it must be full, fair and effective: Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818. The urgency must also be genuine; administrative convenience or a wish to avoid argument does not qualify, and the court will examine whether immediate action was really required.

5. Does natural justice apply to the evaluation of an examination answer script? No. Academic evaluation is an exception: an examiner assesses, he does not adjudicate between parties, and there is nothing on which the candidate could usefully be heard. The exception is confined to evaluation. Where a student is charged with misconduct such as copying or impersonation, the proceeding is disciplinary and not evaluative, and the full requirements of natural justice apply, including notice of the specific charge, disclosure of the material and an opportunity to answer.

The Indian working position

Indian courts use the language of voidness but treat the consequence as relative: the order is void as against the person whose right to be heard was denied, and it is he who may complain. That produces the practical rule: voidable at the instance of the person aggrieved.

In an answer, state the orthodox theory, then state the practical position, and say why the two differ. That is the whole of the question.

Question 2: waiver and acquiescence

A person entitled to a hearing may lose the right in three ways.

Waiver. He knows of the breach and expressly gives up the objection, for example by agreeing to a decision on documents.

Acquiescence. He knows of the disqualifying interest or the defect in procedure, takes part without objecting, and complains only after losing. This is common with bias: a party who knew the decision maker was related to his opponent and said nothing will not be heard to raise it afterwards: [The Rule Against Bias].

Delay. Writ jurisdiction is discretionary, and a petitioner who sits on his rights while others act on the order may be refused relief on that ground alone.

There is a limit. Waiver requires knowledge. A person who did not know of the interest, or who was never told what was alleged, cannot be said to have given up an objection he did not know he had.

Question 3: what the court does

This is the part that decides real cases, and it has four elements.

The usual order: quash and remit

The normal remedy is certiorari to quash the decision, and a direction to decide afresh after a proper hearing. The court does not substitute its own decision on the merits, because the merits were entrusted by the statute to the authority and not to the court: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in judicial review the court is not an appellate authority.

The consequence, which students often find unsatisfying and which should be stated plainly, is that the person may lose again. Winning on natural justice wins a fresh hearing, not the case.

Relief may be refused where no prejudice was caused

This is the useful formality theory in its remedial dress, and it is the safer way to express it: the court accepts that there was a breach but declines to quash, because the outcome could not have been different. It is applied narrowly for the reasons given in [Exceptions to the Principles of Natural Justice].

A post-decisional hearing may be accepted instead

Rather than quashing, the court may direct that a hearing now be given. That is what happened in both of the leading cases.

Facts. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, concerned a takeover of the management of the company's undertaking under section 18AA(1)(a) of the Industries (Development and Regulation) Act 1951, without the investigation provided for elsewhere in the Act and without hearing the company.

Held. By the majority, Chinnappa Reddy J dissenting, there had been non-compliance with the implied requirement of the audi alteram partem rule at the pre-decisional stage, and the impugned order could be struck down as invalid on that score alone; but in view of the commitment that a hearing would be afforded, the case was remitted to the Central Government to give a full, fair and effective hearing. Natural justice is not capable of a static and precise definition and cannot be imprisoned in the straitjacket of a cast-iron formula; its rules operate only in areas not covered by a validly made law and may be excluded specifically or by inevitable implication.

Why it matters here. The first half of that holding is the answer to this chapter's question: a breach of the hearing rule is by itself enough to invalidate the order. The second half shows the discretion: the Court chose a remedy short of quashing because a real hearing was on offer.

Facts. Maneka Gandhi v. Union of India, AIR 1978 SC 597, concerned a passport impounded under section 10(3)(c) of the Passports Act 1967 "in public interest", without a hearing and with reasons refused.

Held. Article 14 strikes at arbitrariness in State action, the procedure under Article 21 must be right and just and fair and not arbitrary, fanciful or oppressive, and natural justice may be implied even where the statute is silent, there being no distinction between quasi-judicial and administrative functions for this purpose.

Why it matters here. The order was not quashed. The Court proceeded on the footing that the petitioner would be given an opportunity to be heard and that her representation would be considered. It is the leading illustration that the consequence of a breach is worked out through the remedy rather than by an automatic declaration of nullity.

Compensation is not the ordinary remedy

A breach of natural justice ordinarily produces a quashing order, not damages. Where the administrative act also violates a fundamental right, compensation in public law may be available, which is a separate development treated in [Tortious Liability of the State].

A worked example

Ravi Deshpande, a shopkeeper, has his trade licence cancelled without notice. Trace the consequences.

Is the order void? In theory yes: the licensing authority had no power to cancel without hearing him. In practice it stands until set aside, and it is Ravi who must move.

Suppose Ravi does nothing for three years and then files a writ petition. Relief is likely to be refused for delay, even though the breach is clear.

Suppose Ravi attended a meeting, argued the merits, never objected to the absence of a notice, and lost. He may be held to have waived the defect, if he knew of it.

Suppose Ravi moves promptly. The court will ordinarily quash the cancellation and direct the authority to decide afresh after giving him notice, disclosure and a hearing. It will not itself decide whether the licence should be cancelled.

Suppose the authority then holds a proper hearing and cancels the licence again. That is a lawful outcome. Ravi won the procedural point and lost the case.

Suppose the ground of cancellation was that Ravi had been convicted of adulteration, and he admits the conviction. The authority may argue no prejudice, since the fact is admitted and the statute makes conviction a ground. The court may decline to quash on that basis, though it would still consider whether he was entitled to be heard on whether cancellation, rather than suspension, was the right consequence.

Distinctions worth having straight

What it does NOT mean

It does not mean the person wins the case. He wins a hearing.

It does not mean the order can simply be ignored. It must be challenged.

It does not mean the breach can never be cured. A full, fair and effective hearing afterwards may suffice where the original omission was justified.

It does not mean relief follows automatically. Writ relief is discretionary and may be refused for delay, waiver, absence of prejudice or the conduct of the petitioner.

Quick revision

1. Three questions: void or voidable; waiver; and remedy.
2. Orthodox theory: a breach goes to jurisdiction and the order is a nullity, the position taken in Ridge v. Baldwin.
3. Indian working position: void as against the person denied a hearing, and therefore voidable at his instance; he must move, and he may waive.
4. Waiver requires knowledge; acquiescence and delay may also defeat relief.
5. Usual remedy: quash and remit for a fresh hearing. The court does not decide the merits: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.
6. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818: the breach could by itself have invalidated the order, but the Court remitted for a full, fair and effective hearing.
7. Maneka Gandhi v. Union of India, AIR 1978 SC 597: the order was not quashed; the Court proceeded on the footing that a hearing would be given.
8. Relief may be refused where no prejudice was caused.

Test yourself

1. What is the effect of an order passed in violation of natural justice? Is it void or voidable? In theory such an order is a nullity, because the authority was empowered to decide only after hearing and an order made without a hearing is beyond its jurisdiction; that is the view taken in Ridge v. Baldwin. In practice Indian courts treat the consequence as relative: the order is void as against the person whose right to be heard was denied, so it is voidable at his instance. He must move to have it set aside, it is acted on until he does, and he may waive the breach if he knows of it, none of which is true of a true nullity. The practical answer is therefore that such an order is invalid but must be challenged, and that the challenge is subject to the ordinary discretionary limits on writ relief.

2. Can a breach of natural justice be waived? Yes, by a person who knows of it. Waiver may be express, as where a party agrees to a decision on documents, or it may arise from acquiescence, as where a party who knows of a disqualifying interest takes part without objecting and complains only after losing. Waiver requires knowledge, so a person who was never told what was alleged, or who did not know of the interest, cannot be said to have given up an objection he did not know he had. Delay in moving the court may also lead to relief being refused, because writ jurisdiction is discretionary.

3. What order does a court usually make when natural justice has been violated? It ordinarily quashes the decision and remits the matter to the authority to be decided afresh after a proper hearing. It does not substitute its own decision on the merits, because those were entrusted to the authority by the statute and, as Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds, in judicial review the court is not an appellate authority. The consequence is that a person who succeeds on a natural justice point wins a fresh hearing rather than the case, and the authority may lawfully reach the same conclusion after hearing him.

4. Can relief be refused despite a breach of natural justice? Yes. Writ relief is discretionary, and it may be refused where the petitioner has waived the breach or acquiesced in it, where he has been guilty of unexplained delay, where his own conduct disentitles him, or where the breach caused no prejudice because the outcome could not have been different. The last of these is the useful formality theory expressed as a matter of remedy rather than of liability, and it is applied narrowly, since the purpose of a hearing is that nobody can say in advance what it would have produced.

5. Discuss the treatment of the consequences of breach in the two leading Indian cases. In Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, the Government took over an undertaking under section 18AA(1)(a) of the Industries (Development and Regulation) Act 1951 without investigation or hearing. The majority held that the audi alteram partem rule was implied at the pre-decisional stage and that the order could be struck down as invalid on that ground alone, but, in view of the commitment that a hearing would be given, remitted the matter for a full, fair and effective hearing. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, a passport was impounded without a hearing and reasons were refused; the Court held that the procedure under Article 21 must be right, just and fair and that natural justice could be implied although the statute was silent, but did not quash the order, proceeding instead on the footing that the petitioner would be heard and her representation considered. Both show that the consequence of a breach is worked out through the remedy the court chooses.

The Administrative Tribunals Act 1985 was enacted under Article 323A, and it constitutes the Central Administrative Tribunal and the State Administrative Tribunals. Its scheme is treated in [The Working of Tribunals: the Administrative Tribunals Act 1985].

Both Articles originally allowed the exclusion of the jurisdiction of all courts except the Supreme Court under Article 136. That exclusion is no longer good law, and the case that ended it is set out below.

The characteristics of a tribunal

This is the list an examiner is asking for when the question says "characteristics". Seven, and each should be explained rather than named.

1. It is a creature of statute. A tribunal exists only because an Act creates it, and it has only the powers the Act gives. It has no inherent jurisdiction, unlike a civil court, which can try all suits of a civil nature unless barred.

2. It has the trappings of a court, but is not a court. It sits to hear parties, takes evidence, and gives a binding decision. The distinction from a court proper is the subject of [Tribunal and Court Distinguished].

3. It has a duty to act judicially. Whatever its composition, it must observe natural justice: notice, a hearing, absence of bias and reasons. That is what separates it from a purely administrative authority.

4. It is not bound by the strict rules of procedure and evidence. Most constituting Acts say expressly that the tribunal shall be guided by the principles of natural justice and shall not be bound by the Code of Civil Procedure or the Indian Evidence Act, while giving it the powers of a civil court for specified purposes such as summoning witnesses and requiring the production of documents.

5. It combines legal and technical membership. A typical tribunal has a judicial member, who is or has been a judge or is legally qualified, and an administrative or technical member with experience of the subject. That combination is its whole purpose and also its central problem, which is the subject of [Tribunalisation and the Threat to Judicial Independence: the Tribunals Reforms Act 2021].

6. Its jurisdiction is limited and specialised. It decides one class of dispute, defined by the Act.

7. It is subject to the supervisory jurisdiction of the High Court. Under Articles 226 and 227, and this cannot be excluded.

The case that settled the last characteristic

Facts. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, was heard by seven judges. The question was whether clause (2)(d) of Article 323A and clause (3)(d) of Article 323B, which permitted the exclusion of the jurisdiction of all courts except the Supreme Court under Article 136, and section 28 of the Administrative Tribunals Act 1985 together with the corresponding exclusion clauses in other Acts, were constitutionally valid, and what the position of the tribunals was in the judicial hierarchy.

Held. Clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226 and 227 and Article 32, are unconstitutional, and section 28 of the Act and the exclusion of jurisdiction clauses in all other legislation under those Articles are unconstitutional to the same extent. The jurisdiction conferred on the High Courts under Articles 226 and 227 and on the Supreme Court under Article 32 is part of the inviolable basic structure of the Constitution. While that jurisdiction cannot be ousted, other courts and tribunals may perform a supplemental role in discharging those powers. The tribunals created under Articles 323A and 323B are competent to test the constitutional validity of statutory provisions and rules, but all their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls. The tribunals continue to act as courts of first instance in their fields, so litigants may not approach the High Courts directly. Where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises before a single Member Bench, the proviso to section 5(6) applies and the matter must be referred to a Bench of at least two Members, one of whom must be a Judicial Member.

Why it matters. It defines what a tribunal is in India today: a court of first instance, competent even to decide constitutional questions, but always subject to review by a Division Bench of the High Court. Every later question about tribunals starts here.

The advantages of tribunals

The criticisms

An answer that lists advantages and stops is half an answer.

1. Independence. Members are appointed, paid and often reappointed by the very government that is the usual litigant before them. This is the objection that produced the litigation in [Tribunalisation and the Threat to Judicial Independence: the Tribunals Reforms Act 2021].
2. Inconsistency. Freedom from precedent means like cases may not be decided alike.
3. Procedural informality can work against the citizen, who may not know what evidence to bring, while the department appears through experienced officers.
4. No uniform procedure. Each Act prescribes its own, so a litigant faces a different regime in each tribunal.
5. Delay has reappeared. Vacancies, backlogs and appeals to the High Court have in some tribunals reproduced the delays they were created to avoid.
6. Fragmentation of the justice system, with the ordinary hierarchy replaced by dozens of separate bodies.

A worked example

Sunita Pawar, a clerk in a Central Government department at Nagpur, is denied promotion. She wishes to challenge it.

Where does she go? Not to the civil court and not, at first, to the High Court. Her dispute concerns the conditions of service of a person appointed to a public service under the Union, so it falls squarely within Article 323A and the Administrative Tribunals Act 1985, and she must apply to the Central Administrative Tribunal.

Can the Act say that no court shall have jurisdiction? It says something like that in section 28, but after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, that exclusion is unconstitutional so far as it touches Articles 226, 227 and 32.

Can she go straight to the High Court instead? No. The tribunal is a court of first instance, and L. Chandra Kumar holds that litigants may not approach the High Courts directly.

If the tribunal decides against her, what then? A writ petition to a Division Bench of the High Court within whose jurisdiction the tribunal falls, not to a single judge, and not directly to the Supreme Court.

Can the tribunal decide that a service rule is unconstitutional? Yes. L. Chandra Kumar holds tribunals competent to test the constitutional validity of statutory provisions and rules, but if the point arises before a single Member Bench it must be referred to a Bench of at least two Members, one of whom is a Judicial Member.

What it does NOT mean

It does not mean a tribunal is a lesser court. It is a court of first instance in its field, competent to decide constitutional questions.

It does not mean tribunals are free of judicial control. Their decisions are reviewable by a Division Bench of the High Court, and that cannot be taken away.

It does not mean informality dispenses with fairness. Freedom from the Code of Civil Procedure and the Evidence Act is not freedom from natural justice.

It does not mean Article 323A and Article 323B are the same. They differ in who may legislate and in subject matter.

Quick revision

1. A tribunal is a statutory body outside the ordinary courts, vested with power to adjudicate a specified class of dispute and bound to act judicially.
2. Reasons for their growth: cost, delay, procedural heaviness and lack of expertise in the ordinary courts.
3. Part XIVA, inserted by the Forty-second Amendment 1976. Article 323A: Parliament only, service matters only. Article 323B: Parliament or a State legislature, nine enumerated matters.
4. Seven characteristics: statutory creature; trappings of a court but not a court; duty to act judicially; not bound by the Code of Civil Procedure or the Evidence Act; mixed legal and technical membership; limited specialised jurisdiction; subject to Articles 226 and 227.
5. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125: the exclusion clauses in Articles 323A(2)(d) and 323B(3)(d) and section 28 of the Administrative Tribunals Act 1985 are unconstitutional so far as they exclude Articles 226, 227 and 32; that jurisdiction is part of the inviolable basic structure; tribunals play a supplemental role, may decide constitutional questions, act as courts of first instance, and their decisions go to a Division Bench of the High Court.
6. Advantages: cheapness, speed, expertise, flexibility, relief of the courts, accessibility.
7. Criticisms: doubtful independence, inconsistency, informality favouring the department, no uniform procedure, renewed delay, and fragmentation.

Test yourself

1. What is an administrative tribunal? State its characteristics. It is a statutory authority other than a court, vested with power to adjudicate a specified class of dispute, usually between a citizen and the administration, and bound to act judicially. Its characteristics are that it is a creature of statute with no inherent jurisdiction; that it has the trappings of a court without being one; that it is under a duty to act judicially and so must observe natural justice; that it is not bound by the Code of Civil Procedure or the Indian Evidence Act, though it is usually given the powers of a civil court for specified purposes; that it combines judicial with technical or administrative membership; that its jurisdiction is limited and specialised; and that it is subject to the supervisory jurisdiction of the High Court under Articles 226 and 227, which cannot be excluded.

2. Distinguish Article 323A from Article 323B. Both were inserted into Part XIVA by the Constitution (Forty-second Amendment) Act 1976. Article 323A empowers Parliament alone to provide for administrative tribunals to adjudicate disputes about recruitment and conditions of service of persons appointed to public services under the Union, a State, or a local or other authority or a government company; it is confined to service matters and contemplates one tribunal for the Union and one for each State. Article 323B empowers the appropriate Legislature, Parliament or a State legislature, to provide for tribunals for nine enumerated matters, including taxation, foreign exchange, industrial and labour disputes, land reforms, urban property ceilings, elections, essential goods and rent and tenancy, and permits a hierarchy of tribunals.

3. Can the jurisdiction of the High Courts be excluded in favour of a tribunal? No. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, held that clause (2)(d) of Article 323A and clause (3)(d) of Article 323B, and section 28 of the Administrative Tribunals Act 1985 with the corresponding clauses in other Acts, are unconstitutional to the extent that they exclude the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32, because that jurisdiction is part of the inviolable basic structure of the Constitution. Tribunals may perform a supplemental role, and their decisions are subject to scrutiny by a Division Bench of the High Court within whose jurisdiction they fall.

4. State the advantages and disadvantages of tribunals. The advantages are cheapness, since court fees and legal representation are often unnecessary; speed, because the procedure is simple and the jurisdiction narrow; expertise, since members are drawn from those who know the subject; flexibility, because the tribunal is not bound by the strict rules of evidence or by precedent in the way a court is; relief of the ordinary courts; and accessibility for a litigant appearing in person. The disadvantages are the doubtful independence of members appointed and paid by the government that is the usual litigant; inconsistency of decisions; informality that can favour the department, which appears through experienced officers; the absence of a uniform procedure across tribunals; the reappearance of delay through vacancies and backlogs; and the fragmentation of the justice system.

5. May a tribunal decide that a statutory rule is unconstitutional? Yes. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, holds that tribunals created under Articles 323A and 323B are competent to test the constitutional validity of statutory provisions and rules. Two conditions attach: where such a question arises before a single Member Bench, the proviso to section 5(6) of the Administrative Tribunals Act 1985 requires the matter to be referred to a Bench of at least two Members, one of whom must be a Judicial Member; and every decision remains subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls.

The single sharpest test: ask where the body's jurisdiction comes from. A civil court has jurisdiction unless the law takes it away; a tribunal has none unless the law gives it.

What tribunals and courts have in common

The distinction is one of degree, and an answer that treats it as absolute is wrong. Both:

• decide disputes between parties and give binding decisions;
• must act judicially and observe natural justice;
• must give reasons, on the principle in [Reasoned Decisions];
• take evidence and hear argument;
• are subject to the writ jurisdiction; and
• may, in the case of a tribunal under Articles 323A and 323B, decide constitutional questions.

That last point is the modern position and it narrows the gap considerably.

Facts. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, was a reference to seven judges on whether clause (2)(d) of Article 323A and clause (3)(d) of Article 323B, and section 28 of the Administrative Tribunals Act 1985 with the corresponding exclusion clauses in other statutes, could validly exclude the jurisdiction of the High Courts, and on the place of tribunals in the judicial hierarchy.

Held. Those clauses are unconstitutional to the extent that they exclude the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32, that jurisdiction being part of the inviolable basic structure of the Constitution. Tribunals may perform a supplemental role in discharging those powers. Tribunals created under Articles 323A and 323B are competent to test the constitutional validity of statutory provisions and rules, but all their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls, and they continue to act as courts of first instance so that litigants may not approach the High Courts directly. Where such a question arises before a single Member Bench, the proviso to section 5(6) requires reference to a Bench of at least two Members, one of whom must be a Judicial Member.

Why it matters here. It settles the relationship: a tribunal is not a rival to the High Court but a court of first instance beneath it. That is the sentence to use when asked how tribunals stand in relation to courts.

Tribunal distinguished from a purely administrative body

The second distinction, which questions often add, is between a tribunal and an ordinary administrative authority. The test is the duty to act judicially, and it comes from Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222.

Facts. Section 3 of the Bombay Land Requisition Ordinance 1947 allowed the Provincial Government, if in its opinion it was necessary or expedient, to requisition any land for a public purpose. The first respondent, a refugee from Sind, took an assignment of tenancy rights in a Bombay flat and went into possession. Days later the Government requisitioned the flat, allotted it to another refugee and directed an Inspector to take possession. The High Court issued certiorari against the Province and a Division Bench confirmed it.

Held. By the Full Court, certiorari lies whenever a body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, acts in excess of that authority; it does not lie against an order that is administrative or ministerial. By the majority of four to two, the Government's decision that the property was required for a public purpose was an administrative act, so certiorari did not lie. Kania CJ held that the true test is whether the law under which the authority decides itself requires a judicial approach, and that a lis, or a right to examine and cross-examine, is not necessary. Fazl Ali J put it that the mere fact that an executive authority has to decide something does not make the decision judicial: it is the manner in which the decision has to be arrived at that matters, and the real test is whether there is a duty to decide judicially.

Why it matters here. It gives the criterion that separates a tribunal from a department: a tribunal is set up to decide, and the law requires it to decide judicially.

A worked example: three bodies, three classifications

1. The Court of Small Causes at Bombay. A court: part of the ordinary hierarchy, presided over by judicial officers, bound by procedure and evidence, with jurisdiction over a class of suits defined by law but inherent within that class.

2. The Central Administrative Tribunal. A tribunal: created by the Administrative Tribunals Act 1985 under Article 323A, jurisdiction confined to service matters, mixed judicial and administrative membership, not bound by the Code of Civil Procedure or the Evidence Act, court of first instance, decisions reviewable by a Division Bench of the High Court.

3. The Regional Passport Officer deciding whether to impound a passport. Neither. It is an administrative authority exercising a statutory power. It must act fairly, and after Maneka Gandhi v. Union of India, AIR 1978 SC 597, the procedure must be right, just and fair; but it is not constituted to adjudicate between parties and it is not a tribunal.

Now test the consequences. Certiorari lies against 2 and, on the modern law, against 3 as well for breach of fairness. Article 227 superintendence covers 1 and 2. Contempt power belongs to 1 inherently, to 2 only if the Act confers it, and not at all to 3. A decision of 1 may bind as precedent within its hierarchy; decisions of 2 and 3 do not in the same way.

What it does NOT mean

It does not mean a tribunal is inferior in the sense of deciding less important matters. A service tribunal decides a person's career; a tax tribunal may decide crores.

It does not mean a tribunal need not act judicially. It must, and that is what makes it a tribunal rather than a department.

It does not mean the labels used in a statute are decisive. A body called a tribunal may be a court in substance, and a body called an authority may be a tribunal. What matters is the function and the duty to act judicially.

It does not mean tribunals stand outside the judicial system. After L. Chandra Kumar they are courts of first instance within it, supervised by the High Courts.

Quick revision

1. Court: part of the ordinary hierarchy, inherent and general jurisdiction, judges, bound by procedure and evidence, decides by law alone, inherent contempt power.
2. Tribunal: created by a specific statute, jurisdiction only as conferred, mixed membership, not bound by the Code of Civil Procedure or the Evidence Act, may weigh policy, contempt power only if conferred.
3. Sharpest test: a civil court has jurisdiction unless it is taken away; a tribunal has none unless it is given.
4. Common ground: both decide disputes, both must act judicially, both must give reasons, both are subject to the writ jurisdiction.
5. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125: tribunals are courts of first instance, may decide constitutional questions, and are subject to review by a Division Bench of the High Court; Articles 226, 227 and 32 are part of the basic structure and cannot be excluded.
6. Tribunal against administrative body: the test is the duty to act judicially, from Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222.

Test yourself

1. Distinguish an administrative tribunal from a court. A court is part of the ordinary judicial system, is presided over by judicially trained persons appointed through the constitutional process, possesses inherent and general jurisdiction so that a civil court may try all suits of a civil nature unless barred, is bound by the Code of Civil Procedure and the law of evidence, decides solely according to law, and as a court of record has inherent power to punish for contempt. A tribunal is created by a particular statute for a particular class of dispute, has only the jurisdiction that statute confers, frequently sits with a technical or administrative member alongside a judicial member, is not bound by the Code of Civil Procedure or the Evidence Act though it is given specified civil court powers, may take policy into account, and has contempt power only if the statute gives it. Both must act judicially, and both are subject to the writ jurisdiction of the High Courts.

2. Distinguish a tribunal from an ordinary administrative authority. The distinguishing feature is the duty to act judicially in determining a question affecting rights. A tribunal is constituted to adjudicate, and the law under which it acts requires a judicial approach. An administrative authority exercises a statutory power on grounds of policy and expediency, and although after A.K. Kraipak v. Union of India, AIR 1970 SC 150, and Maneka Gandhi v. Union of India, AIR 1978 SC 597, it must act fairly, it is not constituted to adjudicate. The test is that stated in Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222: whether the law under which the authority is making the decision itself requires a judicial approach, a lis or a right of cross-examination not being necessary.

3. What is the position of a tribunal in the judicial hierarchy in India? It is a court of first instance beneath the High Court. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, held that the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 is part of the inviolable basic structure and cannot be excluded, that tribunals may perform only a supplemental role, that they are competent to decide the constitutional validity of statutory provisions and rules, that all their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction they fall, and that litigants cannot bypass them by going directly to the High Court.

4. Does a tribunal have power to punish for contempt? Not inherently. A court of record has that power by virtue of its status. A tribunal, being a creature of statute, has only the powers the statute confers, so it can punish for contempt only where the constituting Act gives it that power, either directly or by applying the Contempt of Courts Act to it. This is one of the practical consequences of classifying a body as a tribunal rather than a court.

5. Is a body a tribunal merely because the statute calls it one? No. The name used in the statute is not decisive. What matters is the function performed and whether the law requires the body to act judicially in determining questions affecting rights. A body described as an authority may in substance be a tribunal, and a body labelled a tribunal may in substance be an administrative authority. The consequences that follow, as to the appropriate writ, the availability of superintendence under Article 227, contempt power and the treatment of its decisions, depend on the substance and not on the label.

Group 2: jurisdiction, sections 14 to 18

• Section 14 confers on the Central Administrative Tribunal the jurisdiction, powers and authority previously exercisable by all courts except the Supreme Court in relation to recruitment and service matters of persons appointed to All India Services, to civil services of the Union, and to posts under the Union.
• Section 15 does the same for a State Administrative Tribunal in relation to State services, and section 16 for a Joint Administrative Tribunal.
• Section 17 gives the tribunal the power to punish for contempt, the same as a High Court, which is an example of the point made in [Tribunal and Court Distinguished] that a tribunal has contempt power only where the statute confers it.
• Section 18 provides for the distribution of business among the Benches.

Group 3: procedure, sections 19 to 27

This group is where the Act's promise of speed and simplicity lives.

• Section 19 provides for applications to the tribunal by an aggrieved person, in the prescribed form and with the prescribed fee.
• Section 20 provides that an application shall not be admitted unless the applicant has exhausted the remedies available under the relevant service rules, such as departmental appeals and representations. This is a real filter and it is examinable.
• Section 21 prescribes limitation: ordinarily one year from the date of the final order, with power to admit a late application on sufficient cause shown.
• Section 22 is the heart of the procedure. The tribunal is not bound by the Code of Civil Procedure but is guided by the principles of natural justice, and subject to the Act and rules has power to regulate its own procedure. It is given the powers of a civil court under the Code for specified purposes: summoning and enforcing attendance, requiring the discovery and production of documents, receiving evidence on affidavit, requisitioning public records, issuing commissions and reviewing its decisions.
• Section 23 gives the applicant the right to take the assistance of a legal practitioner and allows the Government to be represented likewise.
• Section 24 imposes conditions on the making of interim orders, requiring copies of the application and supporting documents to be furnished to the other side and an opportunity of being heard, unless the tribunal records reasons for immediate relief, in which case the order lapses within fourteen days unless the other side is heard.
• Section 25 empowers the Chairman to transfer cases between Benches, section 26 provides for decision by majority, and section 27 for the execution of orders as a decree of a civil court.

Group 4: exclusion of jurisdiction and transitional provisions, sections 28 to 29A

• Section 28 excluded the jurisdiction of all courts except the Supreme Court under Article 136. This is the provision the Supreme Court cut down, and the position is set out below.
• Section 29 transferred pending cases from the courts to the tribunals, and section 29A provides for the filing of certain appeals.

Group 5: general and rule making, sections 30 to 37

• Section 30 deems proceedings before a tribunal to be judicial proceedings, and section 31 makes the members and staff public servants. Section 32 protects action taken in good faith. Section 33 gives the Act overriding effect. Section 34 is a power to remove difficulties, of the kind discussed in [Forms and Types of Delegated Legislation]. Section 35 confers rule making power on the Central Government and section 36 on the appropriate Government, while section 36A permits rules to be made retrospectively, which is unusual and is the express statutory authority that [Judicial Control over Delegated Legislation] says a retrospective rule requires, and section 37 requires rules to be laid, which is the laying procedure treated in [Legislative Control over Delegated Legislation].

The constitutional litigation, in two steps

Step 1: the Act upheld, with the Chairman's qualification struck down

Facts. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, arose from a challenge to the Act. Article 323A, inserted by the Forty-second Amendment, authorised Parliament to provide for adjudication by administrative tribunals of service disputes, and clause (2)(d) envisaged excluding the jurisdiction of all courts except the Supreme Court under Article 136. Section 28 as first enacted excluded even the Supreme Court's jurisdiction under Article 32; as amended by an Ordinance of 1986 and Act 19 of 1987 it saved the Supreme Court's jurisdiction under Articles 32 and 136. Section 6(1) laid down the qualifications for Chairman, clause (c) of which permitted a person who had for at least two years held the post of Secretary to the Government of India.

Held. Judicial review is a basic and essential feature of the Constitution and no law passed by Parliament in exercise of its constituent power can abrogate or take it away. It is nevertheless within the competence of Parliament to amend the Constitution so as to substitute for the High Court another institutional mechanism for judicial review, without violating the basic structure, provided that mechanism is no less efficacious than the High Court. Since it is the High Court that is being supplanted, the office of Chairman must for all practical purposes be equated with that of the Chief Justice of a High Court, and judicial discipline generated by experience and training is a necessary qualification. A person who had merely held the post of Secretary to the Government of India, with no legal or judicial experience, would not inspire confidence in the public mind and would render the tribunal a much less effective mechanism than the High Court. Clause (c) of section 6(1) was accordingly struck down as invalid.

Why it matters. It accepted the substitution of tribunals for High Courts, on the express condition of equal efficacy. That condition is what the next case found had not been met.

Step 2: the exclusion of the High Courts held unconstitutional

Facts. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, was heard by seven judges. The questions were whether clause (2)(d) of Article 323A and clause (3)(d) of Article 323B, and section 28 of the Act with the corresponding exclusion clauses in other statutes, could validly exclude the jurisdiction of the High Courts, and what the position of the tribunals was in the judicial hierarchy.

Held. Clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226 and 227 and Article 32, are unconstitutional, and section 28 of the Act and the exclusion of jurisdiction clauses in all other legislation under those Articles are unconstitutional to the same extent. The jurisdiction conferred on the High Courts under Articles 226 and 227 and on the Supreme Court under Article 32 is part of the inviolable basic structure. While that jurisdiction cannot be ousted, other courts and tribunals may perform a supplemental role. Tribunals under Articles 323A and 323B are competent to test the constitutional validity of statutory provisions and rules, but all their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls, and they continue to act as courts of first instance, so litigants may not approach the High Courts directly. Where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises before a single Member Bench, the proviso to section 5(6) applies and the matter must be referred to a Bench of at least two Members, one of whom must be a Judicial Member.

Why it matters. It is the case that defines how tribunals actually work today, and it produced a paradox worth stating in an answer: the Act was passed to relieve the High Courts, and the effect of the decision is that every tribunal decision may go to a Division Bench of the High Court, so the workload returned. That is the practical criticism of the whole scheme.

A worked example

Arun Salvi, an Assistant Engineer in a Union Ministry posted at Pune, is reverted to a lower post by an order dated 1 March.

1. First, exhaust departmental remedies. Section 20 bars the tribunal from admitting his application until the remedies under the service rules have been exhausted, so he must prefer the departmental appeal first.
2. Then apply to the Central Administrative Tribunal. Section 14 gives it jurisdiction over his service matter; section 19 governs the application. He may appear in person or through a legal practitioner under section 23.
3. Within time. Section 21 requires the application within one year of the final order, with power to condone delay on sufficient cause.
4. Procedure. Section 22: the tribunal is not bound by the Code of Civil Procedure and is guided by natural justice, but may summon witnesses, require documents and take evidence on affidavit.
5. Interim relief. Section 24: ordinarily only after notice and hearing the other side; an ex parte interim order lapses in fourteen days unless the other side is then heard.
6. Decision. By majority under section 26, executable as a decree of a civil court under section 27.
7. If he loses. Not an appeal to the Supreme Court, and not a petition to a single judge. A writ petition to a Division Bench of the Bombay High Court, following L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
8. If he wants to argue that a service rule is unconstitutional, the tribunal can decide it, but not a single Member Bench: the proviso to section 5(6) sends it to a Bench of two, including a Judicial Member.

The criticism of the working of tribunals

1. The relief promised has not materialised. With review lying to a Division Bench of the High Court, a service dispute now has an extra tier rather than fewer.
2. Vacancies. Tribunals routinely function below strength, and section 5's requirement of a Judicial Member on a Bench cannot be met when there is none.
3. Independence. Appointments, service conditions and the administrative support of the tribunal lie with the Government that is the standing respondent. This is the theme of the next chapter.
4. Section 20's exhaustion requirement delays access while departmental appeals are pursued.
5. Uneven quality, since a tribunal's usefulness depends heavily on who is appointed to it.

Quick revision

1. The Administrative Tribunals Act 1985 was made under Article 323A. It has 37 sections.
2. Establishment: section 4, Central, State and Joint Administrative Tribunals. Composition: section 5, with the proviso to section 5(6) on references to a two Member Bench. Qualifications: section 6.
3. Jurisdiction: sections 14 to 16. Contempt: section 17. Distribution of business: section 18.
4. Procedure: section 19 applications, section 20 exhaustion of remedies, section 21 limitation of one year, section 22 not bound by the Code of Civil Procedure and guided by natural justice with specified civil court powers, section 23 legal representation, section 24 interim orders, section 26 majority, section 27 execution.
5. Section 28 excluded the courts; sections 29 and 29A dealt with transfer and appeals; sections 30 to 37 are general and rule making provisions.
6. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386: judicial review is basic and cannot be abrogated, but an alternative institutional mechanism no less efficacious than the High Court is permissible; section 6(1)(c) struck down.
7. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125: exclusion clauses unconstitutional so far as they touch Articles 226, 227 and 32; that jurisdiction is part of the basic structure; tribunals are supplemental, are courts of first instance, may decide constitutional questions, and are reviewable by a Division Bench of the High Court.

Test yourself

1. Describe the scheme of the Administrative Tribunals Act 1985. The Act was passed under Article 323A. Section 4 establishes the Central Administrative Tribunal, and provides for State Administrative Tribunals on a State's request and for Joint Administrative Tribunals by agreement between States. Section 5 governs composition and Benches, ordinarily one Judicial and one Administrative Member, with the proviso to section 5(6) requiring a question of constitutional interpretation before a single Member to be referred to a Bench of at least two. Section 6 prescribes qualifications and sections 8 to 11 the term and conditions of service. Sections 14 to 16 confer on the tribunals the jurisdiction previously exercised by the courts in service matters; section 17 gives contempt power. Sections 19 to 27 lay down procedure: application, exhaustion of departmental remedies under section 20, limitation of one year under section 21, freedom from the Code of Civil Procedure but adherence to natural justice under section 22, legal representation under section 23, restrictions on interim orders under section 24, decision by majority and execution as a decree. Section 28 excluded the jurisdiction of the courts, and sections 30 to 37 contain general, protective and rule making provisions.

2. Discuss the constitutional validity of the exclusion of the High Courts' jurisdiction under the Act. Section 28 originally purported to exclude the jurisdiction of all courts, including the Supreme Court under Article 32, and after amendment excluded all except the Supreme Court. In S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, the Court held that judicial review is a basic and essential feature which cannot be abrogated, but that Parliament may substitute for the High Court an alternative institutional mechanism provided it is no less efficacious, and it struck down section 6(1)(c), which permitted a Secretary to the Government of India without legal or judicial experience to be Chairman. In L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, seven judges held that clause 2(d) of Article 323A, clause 3(d) of Article 323B and section 28 are unconstitutional so far as they exclude the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32, that jurisdiction being part of the inviolable basic structure; tribunals may perform only a supplemental role, act as courts of first instance, and their decisions are subject to review by a Division Bench of the High Court.

3. What is the effect of section 20 of the Act? It provides that an application shall not be admitted unless the applicant has exhausted the remedies available under the relevant service rules. A government servant must therefore pursue his departmental appeal or representation before he may approach the tribunal. The provision filters out disputes capable of being resolved within the department, but it also delays access to adjudication, and it is one of the practical criticisms of the working of the tribunals.

4. Is a tribunal under the Act bound by the Code of Civil Procedure? No. Section 22 provides that the tribunal is not bound by the procedure laid down in the Code of Civil Procedure but is guided by the principles of natural justice, and that subject to the Act and the rules it has power to regulate its own procedure. It is nevertheless given the powers of a civil court under the Code for specified purposes, including summoning and enforcing the attendance of witnesses, requiring the discovery and production of documents, receiving evidence on affidavit, requisitioning public records, issuing commissions and reviewing its own decisions.

5. "The Administrative Tribunals Act has not achieved its object." Comment. The object was to relieve the High Courts and to provide speedy and specialised adjudication of service disputes. It has partly failed. After L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, every decision of a tribunal may be challenged before a Division Bench of the High Court, so the tribunal has become an additional tier rather than a substitute, and the workload of the High Courts was not relieved as intended. Tribunals frequently function with vacancies, which is serious given that a Bench should include a Judicial Member. The independence of members whose appointment and service conditions rest with the Government that is the standing respondent remains open to objection. Section 20's requirement that departmental remedies be exhausted adds further delay. The specialisation and the simplified procedure under section 22 remain genuine gains.

The condition: equal efficacy

Facts. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, arose from a challenge to the Administrative Tribunals Act 1985. Article 323A permitted Parliament to provide for adjudication by administrative tribunals of service disputes, and clause (2)(d) envisaged excluding the jurisdiction of all courts except the Supreme Court under Article 136. Section 6(1)(c) of the Act allowed a person who had for at least two years held the post of Secretary to the Government of India to be appointed Chairman.

Held. Judicial review is a basic and essential feature of the Constitution and no law passed by Parliament in exercise of its constituent power can abrogate or take it away. It is nevertheless within Parliament's competence to substitute for the High Court another institutional mechanism for judicial review, without violating the basic structure, provided it is no less efficacious than the High Court. Since it is the High Court that is being supplanted, the office of Chairman must for practical purposes be equated with that of the Chief Justice of a High Court, and judicial discipline generated by experience and training is a necessary qualification. A person who had merely held the post of Secretary to the Government of India, with no legal or judicial experience, would not inspire confidence in the public mind and would render the tribunal a much less effective mechanism than the High Court. Section 6(1)(c) was struck down.

Why it matters. It supplied the constitutional standard: not that tribunals are forbidden, but that a tribunal which replaces a court must be as good as the court. Every later case applies that standard to qualifications, tenure and composition.

The limit: the High Courts cannot be excluded

Facts. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, was heard by seven judges, on whether clause (2)(d) of Article 323A, clause (3)(d) of Article 323B and section 28 of the Administrative Tribunals Act 1985 with the corresponding clauses elsewhere could validly exclude the jurisdiction of the High Courts, and on the position of tribunals in the hierarchy.

Held. Those clauses are unconstitutional so far as they exclude the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32, that jurisdiction being part of the inviolable basic structure. Tribunals may perform only a supplemental role. They are competent to test the constitutional validity of statutory provisions and rules, but all their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction they fall, and they act as courts of first instance, so litigants may not approach the High Courts directly. Where a question involving the interpretation of a statutory provision in relation to the Constitution arises before a single Member Bench, the proviso to section 5(6) requires reference to a Bench of at least two Members, one of whom must be a Judicial Member.

Why it matters here. It answers the independence objection in part: however a tribunal is composed, the High Court remains above it, and that cannot be legislated away.

The confrontation of 2021

Facts. Madras Bar Association v. Union of India, decided on 14 July 2021, concerned the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021, promulgated on 4 April 2021, which amended section 184 of the Finance Act 2017. The amendments introduced a minimum age of fifty years for appointment as Chairperson or Member, a term of four years, and a requirement that the Search-cum-Selection Committee recommend a panel of two names. This was the seventh judgment in the line. The Court also recorded the pendency before various tribunals, one of which had 25,571 cases outstanding.

Held. At paragraph 46: the first and second provisos to section 184(1) of the Finance Act 2017, introduced by section 12 of the Ordinance, are void and inoperative; section 184(7) is void and inoperative; and section 184(11)(i) and (ii) are void and unconstitutional. Consequently the earlier declaration prevails, so that the term of a Chairperson is five years or until the age of seventy, and of a Member five years or until sixty-seven, whichever is earlier. The retrospectivity given to the proviso to section 184(11) was upheld, but without affecting appointments made up to 4 April 2021 or the tenures of incumbents appointed under the Court's orders in the meantime. The Court added that the volume of pendency shows the substantial judicial functions tribunals carry out and that appointments should be expedited, and that interdiction by the Court is not a conflict with parliamentary or executive wisdom but part of the discourse between the three branches.

Why it matters. It is the immediate background to the Act named in the syllabus, and what happened next is the point of this chapter.

The Tribunals Reforms Act 2021

The Act was passed and received assent in August 2021, four weeks after that judgment. Two features of it are examinable and both can be read off the Act itself.

It abolished nine appellate tribunals

The Act's structure is unusual and worth describing, because a student who expects a short Act is surprised.

• Sections 1 and 2: short title, commencement and definitions. Section 1(2) provides that the Act shall be deemed to have come into force on the 4th day of April 2021, which is the date of the Ordinance, so the Act operates retrospectively.
• Sections 3 to 7: the substantive provisions on qualifications, appointment, removal, term of office, eligibility for re-appointment and salary.
• Sections 8 to 30: twenty-three sections, each amending one other Act, arranged in a chapter per Act: the Industrial Disputes Act 1947, the Cinematograph Act 1952, the Copyright Act 1957, the Income-tax Act 1961, the Customs Act 1962, the Patents Act 1970, the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act 1976, the Administrative Tribunals Act 1985, the Railway Claims Tribunal Act 1987, the Securities and Exchange Board of India Act 1992, the Recovery of Debts and Bankruptcy Act 1993, the Airports Authority of India Act 1994, the Telecom Regulatory Authority of India Act 1997, the Trade Marks Act 1999, the Geographical Indications of Goods Act 1999, the Protection of Plant Varieties and Farmers' Rights Act 2001 and others.
• Sections 31 to 35: power to amend the Schedule, laying of rules before Parliament, transitional provisions, power to remove difficulties, and repeal and saving.

That structure is the mechanism of abolition. The Act does not contain a section saying "the following tribunals are abolished". It abolishes them by amending each parent Act to delete the appellate tribunal and transfer its jurisdiction to a High Court or another body. The Film Certification Appellate Tribunal, the Intellectual Property Appellate Board and the Airports Appellate Tribunal are among those that went this way, their work returning to the High Courts and the commercial courts. So a reader who wants to know which tribunals were abolished must read sections 8 to 30, not a list.

It re-enacted what had just been struck down

This is the heart of the chapter, and both provisions can be quoted.

Section 3(1) opens: "Notwithstanding anything contained in any judgment, order or decree of any court, or in any law for the time being in force, the Central Government may, by notification in the Official Gazette, make rules to provide for the qualifications, appointment, salaries and allowances, resignation, removal and other conditions of service of the Chairperson and Member of a Tribunal", and its proviso states that "a person who has not completed the age of fifty years shall not be eligible for appointment as a Chairperson or Member".

Section 5 likewise opens "Notwithstanding anything contained in any judgment, order or decree of any court, or in any law for the time being in force", and provides that the Chairperson shall hold office for four years or until the age of seventy, and a Member for four years or until sixty-seven, whichever is earlier.

Compare those with the operative order of 14 July 2021, which had declared the minimum age and the four year term void and had held that the term should be five years. The Act reinstates both, and announces in its own opening words that it does so notwithstanding any judgment of any court.

Section 3(3) does contain a safeguard worth crediting in a balanced answer: the Search-cum-Selection Committee is chaired by the Chief Justice of India or a Judge of the Supreme Court nominated by him, and in the case of a State Administrative Tribunal by the Chief Justice of the High Court of the State. Judicial participation in selection is therefore secured by the Act, even while tenure and age are not.

Is that constitutional?

The question every examiner wants engaged, and the honest answer has three parts.

1. A legislature may enact a fresh law after a judgment, provided it removes the basis of the decision rather than merely overruling it. Legislative overruling of a judgment by declaring it ineffective, without altering the legal foundation, offends the separation of powers, which is what Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, decided in a different setting.
2. The reasoning of the 2021 judgment was constitutional, not merely statutory. It rested on the independence of tribunals as an aspect of the basic structure, applying the equal efficacy standard of S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386. A provision re-enacting exactly what was held void on that ground faces the same objection.
3. The High Courts remain available in any event. Whatever happens to tenure and qualifications, L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, guarantees that a tribunal's decision can be taken to a Division Bench of the High Court, which is the outer limit of any tribunalisation.

The reform proposals

Two recurring proposals should be named.

A National Tribunals Commission, an independent body to handle the appointment, service conditions, oversight and administrative support of all tribunals, so that neither appointment nor infrastructure depends on the parent ministry. It has been urged repeatedly by the Supreme Court in this line of cases and has not been established.

A single nodal ministry for all tribunals, in place of each tribunal being tied to the department whose orders it reviews, which is the least that could be done to answer objection 5 above.

A worked example

Suppose a candidate, aged 46, with fifteen years at the Bar and recognised expertise in indirect tax, applies for appointment as a Judicial Member of an appellate tribunal.

• Is she eligible? Not under the proviso to section 3(1) of the Tribunals Reforms Act 2021, which requires the completion of fifty years of age.
• Was that requirement good law when the Act was passed? No. The same requirement, in the Ordinance, had been declared void on 14 July 2021 in Madras Bar Association v. Union of India.
• Can she challenge it? She may petition the High Court under Article 226 or the Supreme Court under Article 32, contending that the provision offends the independence of tribunals as settled in the line from S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, and that a non obstante clause cannot cure a constitutional defect.
• If she is appointed and the Government declines to re-appoint her after four years? That is the tenure objection in operation: a four year term with the possibility of re-appointment in the gift of the standing litigant is exactly what the independence argument is about.

Distinctions worth having straight

What it does NOT mean

It does not mean tribunals are unconstitutional. Articles 323A and 323B authorise them, and S.P. Sampath Kumar accepted them subject to equal efficacy.

It does not mean the 2021 Act is void. No decision to that effect is recorded in the sources this book is written from. What can be said is what the Act contains and what the judgment four weeks earlier had held.

It does not mean the Act abolished tribunals generally. It abolished nine appellate tribunals by amending their parent Acts and transferring their jurisdiction, principally to the High Courts and commercial courts.

It does not mean the Act is without safeguards. Section 3(3) puts the Chief Justice of India or a nominee Supreme Court Judge at the head of the Search-cum-Selection Committee.

Quick revision

1. Tribunalisation: the transfer of judicial work from courts to statutory tribunals.
2. Five structural objections: the appointing authority is the usual litigant; short tenure with re-appointment; administrative control by the parent ministry; composition allowing administrative members to outnumber judicial members; and attachment to the department whose orders are appealed. Article 50 stands behind all of them.
3. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386: judicial review is basic; a substituted mechanism must be no less efficacious than the High Court; section 6(1)(c) struck down.
4. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125: Articles 226, 227 and 32 are part of the basic structure and cannot be excluded; tribunals are supplemental courts of first instance reviewable by a Division Bench.
5. Madras Bar Association v. Union of India, decided 14 July 2021: the minimum age of fifty, the four year term and the two name panel requirement introduced by the 2021 Ordinance were declared void; the term is five years, or seventy for a Chairperson and sixty-seven for a Member.
6. Tribunals Reforms Act 2021: 35 sections. Deemed in force from 4 April 2021. Sections 3 to 7 substantive; sections 8 to 30 amend twenty-three Acts, which is how nine appellate tribunals were abolished; sections 31 to 35 miscellaneous.
7. Section 3(1) proviso re-enacts the minimum age of fifty, and section 5 the four year term, each opening with a non obstante clause referring to any judgment of any court. Section 3(3) places the Chief Justice of India or a nominee at the head of the selection committee.
8. Reform proposals: a National Tribunals Commission, and a single nodal ministry.

Test yourself

1. What is meant by tribunalisation, and why is it said to threaten judicial independence? Tribunalisation is the process by which adjudicatory work formerly done by the ordinary courts has been transferred to specialised statutory tribunals. It is said to threaten judicial independence for five reasons: the executive, which is the usual litigant before these tribunals, appoints their members; tenure is short and re-appointment is possible, so a member's future depends on the goodwill of that litigant; the tribunal's staff, budget and accommodation are provided by the ministry whose decisions it reviews; administrative members without judicial training may sit in numbers equal to or greater than judicial members; and each tribunal is attached to its parent department. Article 50 directs the separation of the judiciary from the executive, and these features run against it.

2. Trace the case law on the independence of tribunals. In S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, the Court held that judicial review is a basic and essential feature which Parliament cannot abrogate, but that it may substitute an alternative institutional mechanism provided it is no less efficacious than the High Court, and struck down section 6(1)(c) of the Administrative Tribunals Act 1985, which would have allowed a Secretary to the Government of India without legal or judicial experience to be Chairman. In L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, seven judges held that the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 is part of the inviolable basic structure and cannot be excluded, that tribunals are supplemental courts of first instance, and that their decisions are reviewable by a Division Bench of the High Court. In Madras Bar Association v. Union of India, decided on 14 July 2021, the seventh in that line, the Court declared void the minimum age of fifty, the four year term and the panel of two names introduced by the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021, and held the term to be five years or seventy for a Chairperson and sixty-seven for a Member.

3. Describe the scheme of the Tribunals Reforms Act 2021. It has 35 sections and is deemed by section 1(2) to have come into force on 4 April 2021. Sections 3 to 7 contain the substantive provisions on qualifications and appointment, removal, term of office, eligibility for re-appointment and salary. Sections 8 to 30 are twenty-three sections, each amending one other Act, from the Industrial Disputes Act 1947 to the Protection of Plant Varieties and Farmers' Rights Act 2001, and it is through those amendments that nine appellate tribunals, including the Film Certification Appellate Tribunal and the Intellectual Property Appellate Board, were abolished and their jurisdiction transferred principally to the High Courts and commercial courts. Sections 31 to 35 deal with the power to amend the Schedule, the laying of rules, transitional provisions, the removal of difficulties and repeal and saving.

4. "The Tribunals Reforms Act 2021 re-enacted what the Supreme Court had struck down." Examine. The statement is supported by the text of the Act. On 14 July 2021 the Supreme Court in Madras Bar Association v. Union of India declared void the provisions of the 2021 Ordinance that imposed a minimum age of fifty years and a four year term. The Act, passed the following month, provides in the proviso to section 3(1) that a person who has not completed the age of fifty shall not be eligible for appointment, and in section 5 that the Chairperson shall hold office for four years or until seventy and a Member for four years or until sixty-seven. Both sections open with the words "Notwithstanding anything contained in any judgment, order or decree of any court". A legislature may validly enact a fresh law after a judgment if it removes the basis of the decision, but a provision that simply restates what was held unconstitutional, on reasoning about the independence of tribunals, faces the same constitutional objection. Whatever the outcome, the guarantee in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, that a tribunal's decision may be taken to a Division Bench of the High Court, remains.

5. What reforms have been proposed to protect the independence of tribunals? The principal proposal, urged repeatedly by the Supreme Court in this line of cases, is a National Tribunals Commission: an independent body responsible for the appointment of members, their service conditions, oversight and the administrative support of all tribunals, so that neither appointment nor infrastructure depends on the ministry whose orders the tribunal reviews. A second and more modest proposal is that all tribunals be placed under a single nodal ministry rather than each being attached to its parent department. The Tribunals Reforms Act 2021 does contain one safeguard in this direction: section 3(3) places the Chief Justice of India, or a Judge of the Supreme Court nominated by him, at the head of the Search-cum-Selection Committee, and the Chief Justice of the High Court at the head of the committee for a State Administrative Tribunal.

6. Speed. In an emergency there is no time to seek fresh legislative authority.

The problem discretion creates

Against those reasons stands the objection stated at its sharpest by Dicey in [Rule of Law]: where there is discretion there is room for arbitrariness, and wide discretionary authority is the opposite of the rule of law.

The modern answer is not that Dicey was wrong about the danger but that he was wrong about the remedy. The remedy is not abolition, which would make government impossible, but confinement, structuring and checking.

• Confining discretion means the statute states its limits: the purposes for which it may be used, the matters to be considered, the maximum penalty.
• Structuring discretion means the authority publishes the criteria on which it will exercise the power, gives reasons, follows a settled procedure and keeps records. This is what administrative circulars do, as noted in [Sources of Administrative Law], and what section 4 of the Right to Information Act 2005 now requires.
• Checking discretion means judicial review, on the grounds in the next two chapters, and the internal and political controls in Module IV.

Discretion is never absolute

This is the proposition that governs the whole of Module III, and it has a constitutional source.

Facts. Maneka Gandhi v. Union of India, AIR 1978 SC 597, concerned a passport issued in June 1976 and impounded in July 1977 by an order under section 10(3)(c) of the Passports Act 1967 which recited only that it was done "in public interest". The petitioner was given no hearing, and when she asked for the reasons the Government declined to give them, saying it was not in the interest of the general public to do so.

Held. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment: equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch. The principle of reasonableness pervades Article 14, and the procedure contemplated by Article 21 must answer the test of reasonableness in order to conform to Article 14; it must be right and just and fair, and not arbitrary, fanciful or oppressive. The Passports Act does not provide for a hearing before impounding, but that is not conclusive, since even where a statute is silent the law may imply the principle and apply it. There is no distinction between a quasi-judicial function and an administrative function for this purpose.

Why it matters here. It is the reason discretion in India is never unfettered. Even where a statute says "in the opinion of the Government" and provides no criteria, Article 14 requires that the opinion not be arbitrary, and Article 21 requires a fair procedure where liberty is affected. A statutory formula cannot buy the administration freedom from those Articles.

Facts. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, concerned admissions to the two government medical colleges of Jammu and Kashmir for 1988-89. In an earlier case the High Court had directed the State to entrust selection to a statutory independent body and, until then, to a body free from executive influence. The State constituted a Competent Authority by a 1987 procedure order. Unsuccessful candidates challenged the selection as violating those directions, and the High Court allowed the petitions and issued a mandamus.

Held. Although separation of powers is not recognised in absolute rigidity, the Constitution makers meticulously defined the functions of the organs, which must function within their own spheres. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive; but while their power is subject to judicial restraint, the only check on the court's own power is the self imposed discipline of judicial restraint. In exercising judicial review of administrative action the court is not an appellate authority, and the Constitution does not permit it to direct or advise the executive in matters of policy, provided the executive keeps within its constitutional and statutory limits.

Why it matters here. It states the other half of the balance. Discretion is reviewable, but review is not appeal: the court asks whether the choice was lawfully made, not whether it would have made the same choice.

The vocabulary of review

Three expressions recur and should be defined once.

Subjective and objective satisfaction. Where a statute says "if the authority is satisfied", the satisfaction is called subjective; where it says "if the prescribed conditions exist", it is objective. The distinction once mattered greatly, because a subjective satisfaction was thought unreviewable. It matters much less now: even a subjective satisfaction must be arrived at on relevant material, in good faith and for the statutory purpose, and an authority that had no material at all has not been satisfied of anything.

Jurisdictional fact. A fact whose existence is a precondition of the power. If the Act allows a building to be demolished when it is "unauthorised", the building's being unauthorised is a jurisdictional fact, and the authority cannot give itself power by wrongly finding it.

Policy and merits. The area the court leaves to the administration. Whether a road should run east or west is policy; whether the authority considered the relevant matters in choosing is law.

A worked example

A statute provides: "The Commissioner may, if he is satisfied that it is necessary in the public interest, refuse to renew a licence, after giving the licensee an opportunity of being heard, and shall record his reasons."

Ask, in order, the questions Module III asks.

1. Is there discretion? Yes, on two points: whether the public interest requires refusal, and whether to refuse.
2. Is it unfettered? No. It is confined by the words "in the public interest", by the hearing requirement, by the duty to give reasons, and by Articles 14 and 21.
3. What must the Commissioner do? Hear the licensee, consider the relevant material, ask himself the question the statute poses and no other, and record reasons.
4. What may he not do? Refuse because the licensee criticised him, which is an improper purpose. Refuse on a departmental circular treated as binding, which is a fetter on discretion. Refuse because a minister told him to, which is acting under dictation. Refuse without any material, which is no satisfaction at all.
5. What will a court not do? Substitute its own view of where the public interest lies. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Those questions and answers are the whole of the next two chapters, and a student who can ask them in this order can answer any problem on discretion.

Distinctions worth having straight

What it does NOT mean

It does not mean discretion is a licence. Every discretion is conferred for a purpose and confined by the Act that confers it.

It does not mean a subjective formula excludes review. "If in the opinion of" limits the intensity of review; it does not remove it.

It does not mean a court may correct an unwise decision. Unwisdom is not a ground; unreasonableness of the extreme kind is: [Grounds of Judicial Review: Abuse of Discretion].

It does not mean discretion is inconsistent with the rule of law. The modern view is that discretion conferred by law, exercised for its purpose and subject to review, is compatible with it: [Rule of Law].

Quick revision

1. Administrative discretion: statutory power to choose between courses of action, or to decide whether to act.
2. Recognise it by "may", "if satisfied", "if in its opinion", "as it thinks fit". Recognise its absence by "shall" on a stated fact.
3. Reasons for conferring it: unforeseeable cases, changing circumstances, individual justice, technical judgment, planning and allocation, and speed in emergency.
4. The danger is arbitrariness; the answer is to confine, structure and check, not to abolish.
5. Maneka Gandhi v. Union of India, AIR 1978 SC 597: equality and arbitrariness are sworn enemies; Article 14 strikes at arbitrariness; the procedure under Article 21 must be right, just and fair. Discretion is therefore never unfettered in India.
6. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899: judicial review is a powerful weapon, but the court is not an appellate authority and may not direct or advise on policy; the only check on the court is self imposed restraint.
7. Vocabulary: subjective and objective satisfaction, jurisdictional fact, policy and merits.

Test yourself

1. What is administrative discretion, and why is it conferred? It is the power given by statute to an administrative authority to choose between alternative courses of action, or to decide whether to act at all, according to its own judgment of what the circumstances require. It is conferred because a legislature cannot foresee every case that a general rule will meet; because circumstances change faster than statutes can be amended; because a rigid rule produces hardship in the exceptional case and discretion permits individual justice; because many modern decisions require technical judgment that a statute cannot supply; because planning and allocation necessarily involve choice; and because emergencies require action before fresh authority can be obtained.

2. Is administrative discretion consistent with the rule of law? On Dicey's first meaning it was not, since he treated wide discretionary authority as the opposite of the rule of law. The modern position is that discretion is compatible with the rule of law provided it is conferred by law, confined to the purpose for which it was given, structured by published criteria and reasons, and subject to judicial review. That is reinforced constitutionally by Maneka Gandhi v. Union of India, AIR 1978 SC 597, which held that Article 14 strikes at arbitrariness in State action, that equality and arbitrariness are sworn enemies, and that a procedure affecting personal liberty must be right, just and fair, so that no statutory formula can confer an unfettered power.

3. Distinguish subjective from objective satisfaction, and state its present importance. Where a statute conditions a power on the authority being "satisfied" or on something being "in its opinion", the satisfaction is called subjective; where it conditions the power on the existence of stated facts, it is objective. Formerly a subjective satisfaction was thought to be beyond review. It is no longer so: even a subjective satisfaction must be formed on relevant material, in good faith and for the purpose for which the power was conferred, and an authority with no material before it cannot be said to have been satisfied at all. The distinction now affects the intensity of review rather than its availability.

4. Can a court substitute its own decision for that of the administrative authority? No, as a rule. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in exercising judicial review of administrative action the court is not an appellate authority, and that the Constitution does not permit it to direct or advise the executive in matters of policy, provided the executive stays within its constitutional and statutory limits. The court asks whether the discretion was lawfully exercised; if it was not, the ordinary order is to quash the decision and require the authority to decide afresh according to law.

5. How may discretion be structured? By requiring the authority to publish the criteria on which the power will be exercised, to follow a settled procedure, to keep records, and to give reasons for its decisions. Departmental circulars and published policies perform this function, and although they are not law they bind the administration internally and may found a legitimate expectation. Section 4 of the Right to Information Act 2005 now imposes a statutory duty to publish the norms set for the discharge of functions and to give reasons for administrative and quasi-judicial decisions to affected persons, which converts much of this from good practice into obligation.

Ignoring a relevant consideration is as much a ground as taking an irrelevant one. If the Act requires the authority to have regard to the interests of existing operators and it did not, the decision is bad.

The weight given to a relevant consideration is for the authority, not the court. That is the line between review and appeal: the court checks that the right things were considered; it does not re-weigh them. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that the court is not an appellate authority and may not direct or advise the executive on matters of policy.

Ground 3: mala fides

Mala fides is Latin for bad faith. It covers two things.

Malice in fact: a personal ill will, spite or dishonest motive on the part of the authority. Malice in law: acting knowingly for a purpose other than that for which the power was given, without any personal ill will. This is the commoner and more useful form, and it overlaps improper purpose.

Mala fides in the first sense is a serious allegation, must be specifically pleaded with particulars, and is hard to prove, because the person alleging it rarely has access to the file. A student answering a problem should reach for improper purpose or irrelevant considerations first, and plead mala fides only where the facts show personal animus.

Distinguish it from bias, treated in [The Rule Against Bias]: bias concerns an interest and is proved by position, without any allegation of dishonesty; mala fides concerns motive and is an allegation of dishonesty.

Ground 4: colourable exercise of power

Where the authority does indirectly what it may not do directly, or dresses up a decision as one thing when it is really another. A dismissal disguised as a compulsory retirement, or an acquisition for a public purpose which is in truth for a private one, is a colourable exercise. The expression fraud on the power is used for the same idea.

Ground 5: unreasonableness

The classical English formulation, from the Wednesbury case, is that a decision may be set aside if it is so unreasonable that no reasonable authority could ever have come to it. That is a deliberately high threshold: it is not enough that the court would have decided differently, or that the decision is unwise.

In India the ground is stronger, because of Article 14. Since arbitrariness is itself a violation of Article 14, an unreasonable administrative decision can be attacked as arbitrary without meeting the full Wednesbury standard. That is the effect of Maneka Gandhi v. Union of India, AIR 1978 SC 597.

Facts. A passport issued in June 1976 was impounded in July 1977 by an order under section 10(3)(c) of the Passports Act 1967 stating only that it was "in public interest". No hearing was given, and the Government declined to supply reasons, saying it was not in the interest of the general public to do so.

Held. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment; equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch. The principle of reasonableness pervades Article 14, and the procedure contemplated by Article 21 must answer the test of reasonableness in order to conform to Article 14, being right and just and fair and not arbitrary, fanciful or oppressive. Natural justice may be implied where the statute is silent, and there is no distinction between quasi-judicial and administrative functions for this purpose.

Why it matters here. It converts unreasonableness from a narrow common law ground into a constitutional one. An Indian lawyer attacking a discretionary decision pleads Article 14 arbitrariness, and the Wednesbury formula is used as an illustration of it rather than as the sole test.

Ground 6: no evidence, and mistake of fact

A finding reached with no material at all is not a finding, and a satisfaction formed on nothing is not a satisfaction. This is the practical answer to a statute that says "if the authority is satisfied": the court will not weigh the material, but it will ask whether there was any.

A mistake as to a jurisdictional fact, meaning a fact whose existence is a precondition of the power, is also reviewable, because an authority cannot give itself power by getting that fact wrong: [Administrative Discretion and Why It Is Conferred].

Ground 7: proportionality

Where the interference is out of proportion to the object, the decision may be set aside. In India this operates most strongly where a fundamental right is restricted. It has its own chapter: [The Doctrine of Proportionality].

The delegated legislation parallel

The same reasoning applies to rules as to decisions. A rule made for an improper purpose, on irrelevant considerations, in bad faith, or which is manifestly unjust or oppressive, is void, which is the substantive ultra vires discussed in [Judicial Control over Delegated Legislation]. The grounds are one family applied to two kinds of act.

A worked example

The Municipal Commissioner has power to "refuse permission for a procession where he is satisfied that it is likely to cause a breach of the peace". He refuses permission to the Shramik Union.

Take the possible reasons one at a time.

1. Because two rival groups have announced counter demonstrations along the route and the police report says violence is likely. Lawful. The statutory purpose is met and the satisfaction rests on material.
2. Because the Union criticised the Commissioner in the press last week. Improper purpose, and on these facts malice in fact as well. Void.
3. Because the Commissioner considered that processions inconvenience shopkeepers. Irrelevant consideration: the statute makes breach of the peace the criterion, not inconvenience. Void, unless inconvenience is shown to bear on the risk of disorder.
4. Because the Union's members are mostly of one community and the Commissioner thinks such processions "always cause trouble". Irrelevant consideration and arbitrariness under Article 14.
5. Because a minister telephoned and told him to refuse. Not abuse of discretion at all: it is acting under dictation, which is a failure to exercise discretion, and belongs to the next chapter.
6. Because the Commissioner had no report, no information and no material of any kind. No evidence: there was nothing on which to be satisfied.
7. He permits the procession but confines it to a lane 400 metres long at 6 a.m. Arguably a colourable exercise, granting in form and refusing in substance, and on the modern law disproportionate.

What beginners get wrong

Pleading mala fides as a first resort. It is the hardest ground to prove and the easiest to lose. Improper purpose and irrelevant considerations reach the same result without alleging dishonesty.

Confusing weight with relevance. That the authority gave little weight to something relevant is not a ground; that it did not consider it at all is.

Treating unreasonableness as an invitation to reargue the merits. The Wednesbury threshold is very high; in India the constitutional route through Article 14 is the more productive one.

Forgetting that the burden is on the challenger. Administrative action is presumed to be lawful and made in good faith.

Quick revision

1. Abuse of discretion: the power was used, but improperly.
2. Grounds: improper or ulterior purpose; irrelevant considerations taken or relevant ones ignored; mala fides, in fact or in law; colourable exercise, also called fraud on the power; unreasonableness; no evidence or mistake of a jurisdictional fact; disproportionality.
3. Purpose is found from the statute, not from what the authority believed. On mixed purposes ask which was dominant.
4. Weight is for the authority; relevance is for the court.
5. Malice in fact is personal ill will; malice in law is acting for a purpose other than that for which the power was given. Distinguish both from bias, which is about interest and implies no dishonesty.
6. Maneka Gandhi v. Union of India, AIR 1978 SC 597: Article 14 strikes at arbitrariness; equality and arbitrariness are sworn enemies. Unreasonableness in India runs through Article 14 as well as through the Wednesbury formula.
7. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899: the court is not an appellate authority and will not substitute its view on policy.

Test yourself

1. State the grounds on which the exercise of administrative discretion may be reviewed for abuse. That the power was exercised for an improper or ulterior purpose, that is, a purpose other than the one for which the statute conferred it; that the authority took into account considerations the statute makes irrelevant, or failed to take into account considerations it makes relevant; that the authority acted in bad faith, whether from personal ill will, which is malice in fact, or by knowingly using the power for a purpose other than the statutory one, which is malice in law; that the exercise was colourable, doing indirectly what could not be done directly; that the decision was so unreasonable that no reasonable authority could have reached it, or, in India, was arbitrary and therefore contrary to Article 14; that it rested on no evidence at all, or on a mistake as to a jurisdictional fact; and that it was disproportionate to the object.

2. Distinguish malice in fact from malice in law, and both from bias. Malice in fact is personal spite, ill will or a dishonest motive on the part of the authority. Malice in law is the knowing use of a power for a purpose other than that for which it was conferred, without any personal animus; it overlaps improper purpose and is the more useful ground in practice, because it does not require proof of a state of mind directed at the individual. Bias is different from both: it concerns an interest, whether pecuniary, personal, subject matter, departmental or policy, is established by the decision maker's position rather than by his motive, and carries no imputation of dishonesty. Bias belongs to natural justice; mala fides belongs to the review of discretion.

3. Is it a ground of review that the authority gave insufficient weight to a relevant consideration? Ordinarily not. The court's function is to ensure that the authority considered what the statute required it to consider and excluded what the statute made irrelevant. The weight to be given to each relevant matter is for the authority, because to re-weigh them would be to decide the merits, and Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in judicial review the court is not an appellate authority. Failure to consider a relevant matter at all is a ground; giving it little weight, without more, is not.

4. Explain unreasonableness as a ground of review in India. The classical English test is that a decision may be quashed only if it is so unreasonable that no reasonable authority could ever have come to it, a deliberately high threshold which excludes disagreement on the merits. In India the ground is reinforced by Article 14, because Maneka Gandhi v. Union of India, AIR 1978 SC 597, held that Article 14 strikes at arbitrariness in State action, that equality and arbitrariness are sworn enemies, and that the principle of reasonableness pervades Article 14. An arbitrary administrative decision is therefore unconstitutional without the challenger having to satisfy the full Wednesbury standard, and the English formula operates in India as an illustration of arbitrariness rather than as the only route.

5. A licensing authority refuses a licence because the applicant supported a rival political party. Advise. The refusal is liable to be quashed on several grounds at once. The statutory purpose of a licensing power is directed to matters such as the suitability of the applicant and the premises; the applicant's political affiliation is not among them, so the authority has taken into account an irrelevant consideration and has used the power for a purpose other than the one for which it was conferred, which is improper purpose and malice in law. If personal animosity is shown, malice in fact may also be pleaded, though it must be specifically alleged with particulars. The decision is in any event arbitrary and so contrary to Article 14 on the reasoning of Maneka Gandhi v. Union of India, AIR 1978 SC 597. The ordinary relief is certiorari quashing the refusal and a direction to decide the application afresh according to law, rather than an order that the licence be granted.

A policy that says "applications from persons over sixty will not be entertained" is lawful as a guide and unlawful as an absolute bar, if the statute conferred a discretion to consider each application.

Related forms of the same vice:

• Fettering by contract. An authority which contracts not to exercise a statutory discretion, or to exercise it in a particular way, cannot bind itself in that way, because the power is held for the public and not for the authority's own benefit.
• Fettering by estoppel. An assurance cannot prevent a public authority from performing a statutory duty, though it may found a legitimate expectation of being heard: [The Doctrine of Legitimate Expectation] and [Estoppel and Waiver against the Government].

Ground 3: unlawful sub-delegation

The maxim is delegatus non potest delegare, a delegate cannot further delegate. Where the statute confers a discretion on a named authority, that authority must exercise it, and it may not pass it to another unless the statute permits.

Three refinements matter.

1. Express or necessarily implied authority to sub-delegate is enough.
2. Ministerial and preparatory work may be done by others. An officer may have the file examined, the inquiry conducted and a note prepared; what he may not delegate is the decision.
3. The larger the power, the less readily sub-delegation is implied. A power to impose a penalty is less readily sub-delegated than a power to prescribe a form.

The rule matters here in its decision making form. Its counterpart for rule making is in [Forms and Types of Delegated Legislation].

Ground 4: non-application of mind

The authority passes the order without considering the matter. The usual evidence is the order itself: a printed proforma with blanks filled in; an order that recites the wrong statutory provision; an order that recites grounds which cannot apply to this person; identical orders passed on the same day against many people with different cases; or an order that does not address the explanation the person gave.

This is where [Reasoned Decisions] does its work. Reasons are how an outsider can tell whether a mind was applied. An order in the formula "having considered the material on record, the application is rejected" recites application of mind without demonstrating it, and S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, is the authority for requiring reasons clear and explicit enough to indicate that the authority gave due consideration to the points in controversy.

Ground 5: acting mechanically on another's report

Close to dictation but distinct. The authority receives an inspector's or committee's report and adopts its conclusion without examining it. Considering the report is proper; adopting it without more is not, because the statute made the authority and not the inspector the decider.

Ground 6: refusing to exercise the discretion at all

Where the authority wrongly believes it has no power, or declines to consider an application on a mistaken view that it is barred, it has failed to exercise a discretion it possesses. The remedy is a mandamus to consider and decide according to law, not a direction as to the outcome.

The remedy, and what it is not

For this family the appropriate order is usually a mandamus requiring the authority to exercise its own discretion, together with certiorari quashing whatever was passed.

The court will not direct the authority how to decide. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in exercising judicial review of administrative action the court is not an appellate authority, and that the Constitution does not permit it to direct or advise the executive in matters of policy or to sermonise on matters within the sphere of the legislature or the executive, provided those authorities do not transgress their constitutional or statutory limits. On the facts of that case the High Court's direction to constitute a statutory independent body was in substance a direction to legislate, and could not be given.

A worked example

The Collector has power under a statute to grant a permit "on such conditions as he thinks fit, having regard to the interests of the public". Vaishali Kadam applies. Consider six outcomes.

1. The Collector refuses because the Divisional Commissioner sent a note directing that no new permits be granted this year. Acting under dictation. The statute vested the discretion in the Collector.
2. The Collector has a standing policy of granting no more than fifty permits in the district, has already granted fifty, and refuses without looking at her application. Self imposed fetter. The policy is lawful as a guide; applied as an absolute bar without considering whether her case is exceptional, it is not.
3. The Collector directs the Tehsildar to decide the application. Unlawful sub-delegation, unless the Act permits it.
4. The Collector signs a cyclostyled order refusing the application, in which the applicant's name is written in by hand and the ground cited is one that applies to a different class of applicant. Non-application of mind.
5. The Collector receives an inspector's report recommending refusal and refuses the same day, in the words of the report, without any independent consideration. Acting mechanically on another's report.
6. The Collector returns the application saying he has no power to grant a permit to a woman, which the statute does not provide. Refusal to exercise a discretion he possesses, and discrimination under Article 14 besides.

In every one of the six the remedy is the same: quash the order and direct the Collector to consider and decide the application himself, according to law. In none of them will the court order that the permit be granted.

Distinctions worth having straight

What it does NOT mean

It does not mean an authority may not have a policy. It may, and consistency is desirable. It must simply remain willing to consider the exceptional case.

It does not mean an authority must do all the work itself. Investigation, inquiry and preparation may be done by others; the decision may not.

It does not mean the applicant wins. As with natural justice, success gives a fresh and lawful decision, not a favourable one.

It does not mean advice is dictation. An authority may seek and consider advice; it fails only if it treats the advice as binding.

Quick revision

1. The principle: the discretion must be exercised by the authority the statute names, on the facts of each case.
2. Grounds: acting under dictation; self imposed fetters, including fettering by contract or by an assurance; unlawful sub-delegation; non-application of mind; mechanically adopting another's report; and refusing to exercise a discretion that exists.
3. A policy is lawful; a policy applied as an absolute bar without considering the individual case is not. The authority must keep its mind ajar.
4. Delegatus non potest delegare: the decision may not be delegated, though preparatory work may be.
5. Non-application of mind is usually shown from the order itself, and the duty to give reasons in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, is what exposes it.
6. Remedy: certiorari to quash and mandamus to decide afresh. Not a direction as to the outcome: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Test yourself

1. What is meant by failure to exercise discretion? State the grounds. It is the family of grounds on which an administrative decision may be reviewed because the authority in which the discretion was vested did not bring its own independent judgment to bear on the case. The grounds are acting under the dictation of another, where the authority decides because a superior or a minister has told it to rather than on its own view; imposing a fetter on its own discretion, by adopting a policy or rule and applying it mechanically without considering whether the individual case is exceptional, or by binding itself by contract or assurance; unlawfully sub-delegating the decision, contrary to the maxim delegatus non potest delegare; non-application of mind, usually evident from the order itself; mechanically adopting the report or recommendation of another without independent consideration; and refusing to exercise a discretion which the authority in fact possesses.

2. May an administrative authority adopt a policy for the exercise of its discretion? Yes. A general policy promotes consistency, structures discretion and protects against arbitrariness, and adopting one is not in itself a fetter. What is unlawful is applying the policy as an absolute rule: the authority must keep its mind ajar, must be willing to hear that a particular case is exceptional, and must be prepared to depart from the policy where the case warrants it. A policy operating as an inflexible bar converts a discretion conferred by the legislature into a rule made by the administration.

3. Distinguish acting under dictation from taking advice. An authority may seek and receive advice, may consult others, and may take a departmental policy or circular into account as a relevant consideration. It acts under dictation when it treats the direction or advice as binding and decides because of it rather than on its own judgment. The test is whether the authority applied its own mind to the case or merely transmitted another's decision. The seniority of the person giving the direction is irrelevant, since the statute chose the deciding authority and a superior cannot exercise a power vested in a subordinate unless the statute permits it.

4. Can an authority delegate the exercise of its discretion? Not unless the statute permits it, expressly or by necessary implication, because a delegate cannot further delegate. The authority may have preparatory and ministerial work done by others, such as inspection, inquiry and the preparation of notes, but it must itself take the decision. The readiness of a court to imply a power to sub-delegate falls as the seriousness of the power rises, so a power to impose a penalty is less readily sub-delegated than a power to prescribe a form.

5. What relief does a court grant where discretion has not been exercised? It quashes the order by certiorari and issues a mandamus requiring the authority to consider the matter and decide it according to law, exercising its own judgment. It does not direct the authority how to decide, because that would be to substitute its own view on the merits, and Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in judicial review the court is not an appellate authority and may not direct or advise the executive in matters of policy so long as it stays within its constitutional and statutory limits.

Held. The petitions failed on the merits, but the college was held to be a State within Article 12. The society's composition was dominated by representatives appointed by the Central Government and by the Governments of Jammu and Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government; the money to run the college came entirely from the Central and State Governments and other money could be received only with their approval; the rules made by the society required prior government approval; the accounts had to be submitted to both Governments; and the society had to comply with directions issued by the State Government with the Central Government's approval.

Why it matters here. A body's corporate form does not shield it. If it is financially, functionally and administratively dominated by government, a writ lies against it. The point is developed in [Liability of and Control over Public Corporations].

The five writs

1. Habeas corpus

Meaning. Latin for "you may have the body". An order to the person detaining another to produce him before the court and justify the detention.

When it lies. Where a person is detained without legal authority, or where the detention, though under a law, does not comply with it.

Against whom. Any person, public or private. It is the one writ that lies against a private individual, for example a person unlawfully confining a spouse or child.

Who may apply. The detenu, or anybody on his behalf. The rules of standing are at their most relaxed here for obvious reasons.

Timing. The legality of the detention is judged as at the date of the return to the writ, not the date of the application.

Its suspension during the Emergency, and what the courts made of it, is the subject of [Rule of Law], where the case is worked in full.

2. Mandamus

Meaning. Latin for "we command". An order commanding a public authority to perform a public duty it has refused or failed to perform.

When it lies. Where the applicant has a legal right to the performance of a public duty; where he has demanded performance and been refused; and where the duty is public rather than contractual or private.

When it does not lie.

• Where the duty is discretionary and the authority has lawfully exercised its discretion, though mandamus will lie to compel it to exercise the discretion: [Grounds of Judicial Review: Failure to Exercise Discretion].
• To enforce a private contract.
• Against the President or a Governor personally, by reason of Article 361.
• To direct the legislature to make a law, which is the point decided in Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Mandamus is the writ for inaction. Certiorari is the writ for a bad decision; mandamus is the writ for no decision.

3. Certiorari

Meaning. Latin for "to be certified". An order calling up the record of an inferior court, tribunal or authority and quashing its decision.

When it lies. After a decision has been made, on the grounds of: want or excess of jurisdiction; a jurisdictional error; violation of natural justice; an error of law apparent on the face of the record; and fraud.

Against whom. A body having legal authority to determine questions affecting the rights of subjects and under a duty to act judicially, which is the test in Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222.

Facts. Section 3 of the Bombay Land Requisition Ordinance 1947 allowed the Provincial Government, if in its opinion it was necessary or expedient, to requisition land for a public purpose. The first respondent, a refugee from Sind, took an assignment of tenancy rights in a Bombay flat and went into possession; days later the Government requisitioned the flat, allotted it to another refugee and directed an Inspector to take possession. The Bombay High Court issued certiorari against the Province and a Division Bench confirmed it.

Held. By the Full Court, certiorari lies whenever a body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, acts in excess of its legal authority; it does not lie to remove or adjudicate upon an order which is of an administrative or ministerial nature. By the majority of four to two, the Government's decision that the property was required for a public purpose was administrative and not judicial or quasi-judicial, so the High Court had no jurisdiction to issue certiorari. Kania CJ said the true test is whether the law under which the authority decides itself requires a judicial approach, and that a lis, or a right to examine and cross-examine, is not necessary; Fazl Ali J said the mere fact that an executive authority has to decide something does not make the decision judicial, and the real test is whether there is a duty to decide judicially.

Why it matters here. It states both the scope of certiorari and its old limit. That limit has since softened: after A.K. Kraipak v. Union of India, AIR 1970 SC 150, and Maneka Gandhi v. Union of India, AIR 1978 SC 597, the duty to act fairly attaches to administrative action too, so the question today is less whether the act was quasi-judicial and more whether a legal right has been affected by an unlawful decision.

4. Prohibition

Meaning. An order forbidding an inferior court, tribunal or authority from proceeding in a matter beyond its jurisdiction.

The difference from certiorari is timing, and it is the most commonly examined distinction in this chapter. Prohibition is preventive and issues while the proceeding is pending; certiorari is corrective and issues after the decision. Where the proceeding is part heard, both may issue: prohibition to stop the rest, certiorari to quash what has been done.

5. Quo warranto

Meaning. Latin for "by what authority". An order calling on a person holding a public office to show by what authority he holds it.

When it lies. Where the office is a public office created by statute or by the Constitution, of a substantive character, and the holder is not qualified to hold it under the law.

Who may apply. Any member of the public. Standing is at its widest here, because the applicant need show no personal interest; the wrong is to the public.

When it does not lie. In respect of a private office, or the office of a minister in the ordinary case, or where the appointment is merely irregular rather than contrary to law.

The writs in one table

Article 227 and Article 136

Article 227 gives every High Court superintendence over all courts and tribunals within its territories. It is wider than certiorari in one way, since it can be exercised on the court's own motion and can be used to correct grave errors, and narrower in another, since it does not extend to purely administrative bodies. It is the provision under which a tribunal's decision goes to a Division Bench of the High Court after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

Article 136 gives the Supreme Court discretion to grant special leave to appeal from any judgment, decree, determination, sentence or order of any court or tribunal in India, except a court martial. It is an extraordinary jurisdiction, exercised sparingly.

The ordinary remedies, and the injunction

The writs are not the only relief. Three ordinary remedies run alongside them and are asked about directly.

A declaration is a judgment stating what the legal position is, without ordering anybody to do anything. It is useful where the citizen needs the law settled rather than an act compelled.

Damages in an ordinary suit, on the principles in [Tortious Liability of the State].

An injunction is an order of a civil court directing a party to do or to refrain from doing something. Its kinds should be known.

Two limits matter in administrative law. An injunction is a discretionary equitable remedy, so it is refused where damages are an adequate remedy or where the claimant has delayed. And an injunction ordinarily does not issue to restrain a public authority from performing a statutory duty, because the duty is owed to the public.

The practical difference from a writ: an injunction is sought in a civil suit against a party, while a writ is sought under Article 226 or Article 32 against the State or a body performing a public function. Prohibition and a prohibitory injunction both forbid, and are often confused: prohibition restrains a body from exceeding its jurisdiction and issues from a High Court in its writ jurisdiction, while an injunction restrains a party from doing a wrongful act and issues from a civil court.

The limits on the remedies

An answer that lists the writs without the limits is incomplete, because half of practice is about them.

1. Alternative remedy. Where the statute provides an appeal, a writ petition is ordinarily not entertained, though this is a rule of discretion and not of jurisdiction, and it yields where the alternative remedy is not efficacious, where fundamental rights are violated, where the order is without jurisdiction, or where natural justice has been breached.
2. Delay and laches. Writ relief is discretionary and is refused to a person who has slept on his rights.

Delay and laches are not the same thing, and the difference is asked directly. Delay is simply the lapse of time between the impugned action and the petition. Laches is delay plus something that makes it unjust to grant relief: that the petitioner knew of his right and did not assert it, that the other side or third parties have altered their position on the faith of the order, or that intervening rights have accrued. So delay is a fact and laches is a conclusion drawn from it. There is no period of limitation prescribed for a writ petition, which is why the question is never "is it time barred?" but "has the petitioner explained the delay, and has anything happened in the meantime that makes it unfair to disturb the order now?" A petition filed eight years after the action will ordinarily be refused for laches unless the delay is explained and no rights have intervened.

1. Conduct of the petitioner. Suppression of facts, or unclean hands, defeats the petition.

Dismissal in limine is worth defining here because it is asked as a two mark question. In limine is Latin for "at the threshold". A petition dismissed in limine is one thrown out at the first hearing, without notice to the other side and without a full hearing on the merits, because it discloses no arguable case or is barred by delay, an alternative remedy or the petitioner's own conduct. A dismissal in limine by a reasoned order decides the point; a dismissal in limine without reasons is generally treated as not deciding the merits, so it does not bar a fresh petition on the same cause in the same way a decision on the merits would.

1. No disputed questions of fact. A writ court does not ordinarily decide contested facts requiring evidence.
2. Standing. Traditionally the petitioner must be an aggrieved person, though this is relaxed for habeas corpus, for quo warranto and in public interest litigation.

Res judicata applies to writ petitions, and this too has been asked directly. Res judicata is Latin for "a matter already judged": once a court has finally decided a matter between the same parties, neither may raise it again. A petition under Article 226 decided on the merits therefore bars a second petition on the same cause between the same parties, and constructive res judicata bars a ground which might and ought to have been raised in the first petition but was not. Two qualifications: the bar does not apply where the earlier petition was dismissed in limine without a reasoned order, since nothing was decided; and it is applied with more caution to a petition for habeas corpus, where personal liberty is at stake.

1. The merits are not for the court. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

A worked example

Nikhil Jadhav is a clerk in a municipal corporation. Match each grievance with its remedy.

1. He is detained by the police without any order of remand. Habeas corpus.
2. The Corporation has not paid his provident fund dues although the statute requires payment, and he has demanded them in writing. Mandamus.
3. A departmental inquiry officer dismisses him without disclosing the inspector's report. Certiorari to quash, for breach of natural justice.
4. A second inquiry is begun into the same charge before a body that has no power under the rules to inquire into it. Prohibition, to stop it, and certiorari if it has already decided.
5. The person appointed Commissioner does not hold the qualification the statute prescribes. Quo warranto, which any member of the public may seek.
6. The Corporation has broken an ordinary contract to supply him stationery for his private business. No writ. That is a private contractual claim for a civil suit.
7. A tribunal has decided his service dispute against him. A writ petition to a Division Bench of the High Court, following L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

What it does NOT mean

It does not mean the writs are confined to their English technical forms. Articles 32 and 226 empower the courts to issue directions and orders "in the nature of" the writs, so Indian courts are not bound by the technicalities that grew up around them in England.

It does not mean a writ lies against everybody. It lies against the State under Article 12 and against bodies performing public functions, with habeas corpus the exception.

It does not mean an alternative remedy is an absolute bar. It is a rule of discretion with recognised exceptions.

It does not mean the court decides the matter itself. The usual order is to quash and remit.

Quick revision

1. Article 32: Supreme Court, fundamental rights only, itself a fundamental right. Article 226: High Courts, fundamental rights and for any other purpose. Both are part of the basic structure: L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
2. Habeas corpus: produce the body; lies against private persons too; anybody may apply.
3. Mandamus: to compel performance of a public duty after demand and refusal; not for a private contract, not against the President or a Governor personally, and not to direct the legislature to legislate.
4. Certiorari: to quash, after decision, for want or excess of jurisdiction, breach of natural justice, error of law apparent on the record, or fraud. The duty to act judicially test is in Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222, softened by A.K. Kraipak v. Union of India, AIR 1970 SC 150.
5. Prohibition: preventive, before decision. Certiorari is corrective, after it.
6. Quo warranto: to test the title to a substantive public office; any member of the public may apply.
7. Article 227 superintendence over courts and tribunals; Article 136 special leave.
8. Limits: alternative remedy, delay, conduct, disputed facts, standing, and the rule that the merits belong to the authority.
9. Against whom: the State under Article 12, tested by the instrumentality approach in Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487.

Test yourself

1. Describe the writs available against administrative action in India. Habeas corpus, an order to produce a detained person and justify the detention, which lies against public and private persons alike and may be sought by anybody on the detenu's behalf. Mandamus, an order commanding the performance of a public duty, available where the applicant has a legal right to performance and has demanded it and been refused, but not to enforce a private contract, not against the President or a Governor personally by reason of Article 361, and not to direct the legislature to legislate. Certiorari, an order quashing a decision already made, for want or excess of jurisdiction, breach of natural justice, error of law apparent on the face of the record, or fraud. Prohibition, an order forbidding a body from proceeding beyond its jurisdiction, which issues while the proceeding is pending. And quo warranto, an order calling on the holder of a substantive public office to show by what authority he holds it, which any member of the public may seek.

2. Distinguish certiorari from prohibition. Both are directed at a body exercising judicial or quasi-judicial functions which is exceeding its jurisdiction or acting unlawfully, and the essential distinction is one of timing. Prohibition is preventive and issues while the proceeding is still pending, to stop the body from going further. Certiorari is corrective and issues after the decision has been made, to bring up the record and quash it. Where a proceeding is part heard, both may issue together: prohibition to prevent the remainder and certiorari to quash what has already been done.

3. Compare Article 32 with Article 226. Article 32 empowers the Supreme Court to issue writs for the enforcement of fundamental rights only, and it is itself a fundamental right, so the Court cannot refuse to entertain a petition alleging violation of a fundamental right on the ground of an alternative remedy as readily as a High Court may. Article 226 empowers the High Courts to issue writs both for the enforcement of fundamental rights and "for any other purpose", which extends to the breach of an ordinary legal right, and it is exercisable within the High Court's territories and where the cause of action arises wholly or in part. Because of those five words most administrative law litigation proceeds under Article 226. Both jurisdictions were held in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, to be part of the inviolable basic structure and incapable of exclusion.

4. When will a writ of mandamus not be issued? Where there is no public duty, as in the enforcement of a purely private or contractual obligation; where the applicant has no legal right to the performance of the duty; where there has been no demand for performance and refusal; where the duty is discretionary and the authority has lawfully exercised its discretion, although mandamus will lie to compel the authority to exercise a discretion it has failed to exercise; against the President or the Governor personally, by reason of Article 361; and to direct the legislature to enact a law, which Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds a court may not do. It may also be refused on the discretionary grounds of delay, suppression of facts or the existence of an efficacious alternative remedy.

5. Against which bodies do the writs lie? Against the State as defined in Article 12, which includes the Government and Parliament of India, the Government and legislature of a State, all local authorities and other authorities within the territory of India or under the control of the Government of India, and against other bodies discharging public functions. Whether a corporation or society is an authority within Article 12 is determined by the instrumentality approach applied in Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, where a society running an engineering college was held to be a State because its composition was dominated by government nominees, its funds came entirely from government, its rules required government approval, its accounts were submitted to government and it was bound to comply with government directions. Habeas corpus is the exception, since it lies against a private person as well.

The two kinds of expectation

This division is the core of the topic.

Procedural legitimate expectation

The expectation is of a procedure: to be consulted, to be heard, or to be given notice before the decision. This is the settled and uncontroversial limb, and the remedy is straightforward: the authority must give the procedure, or explain why the public interest requires it to be withheld.

Substantive legitimate expectation

The expectation is of a benefit or a result: the renewal of the licence, the continuation of the concession, the grant of the exemption promised. This limb is more controversial, because enforcing it comes close to compelling the authority to exercise its discretion in a particular way, which offends the principle in [Grounds of Judicial Review: Failure to Exercise Discretion] that discretion may not be fettered.

The Indian position is a middle one, and it should be stated in three parts.

1. A substantive expectation does not create an enforceable right to the benefit.
2. The authority may depart from it, but only for a reason that is rational and in the public interest, and not arbitrarily.
3. If it departs arbitrarily, the decision is reviewable under Article 14, because arbitrariness in State action is the vice Article 14 strikes at.

That last step is what makes the doctrine work in India, and its source is Maneka Gandhi v. Union of India, AIR 1978 SC 597.

Facts. A passport issued in June 1976 was impounded in July 1977 under section 10(3)(c) of the Passports Act 1967, the order reciting only that it was "in public interest". No hearing was given, and reasons were refused on the ground that it was not in the interest of the general public to supply them.

Held. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment; equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch. The procedure contemplated by Article 21 must satisfy the test of reasonableness in order to conform to Article 14, being right and just and fair and not arbitrary, fanciful or oppressive. Even where a statute is silent the law may imply the requirement of natural justice, and there is no distinction between quasi-judicial and administrative functions for this purpose.

Why it matters here. Legitimate expectation in India is enforced principally through Article 14 rather than as a free standing common law doctrine. An authority which departs from its own published policy or settled practice in one case, without explanation, is treating like cases unalike, and that is arbitrary.

The limits

An answer that states the doctrine without its limits overstates it badly.

1. It does not fetter a change of policy. A public authority must remain free to change its policy in the public interest, and a legitimate expectation cannot freeze the law or the policy. What it requires is that the change be made in good faith, for a rational reason, and, where an individual is affected, with an opportunity to be heard.
2. It cannot override a statute. No expectation can compel an authority to act contrary to law.
3. It is not a right to the benefit. At most it is a right to be heard and to a reasoned decision.
4. It does not apply to legislative action. Nobody has a legitimate expectation that a rule will not be amended.
5. The public interest prevails. Where the two conflict, the expectation yields, though the authority must show the public interest genuinely required the departure.

Legitimate expectation compared with its neighbours

A worked example

The State Industries Department publishes a scheme announcing that any unit established in a backward district before 31 March will receive a five year exemption from electricity duty. Rohit Bhandari reads the scheme, buys land, builds a unit and starts production in February.

Case 1. The Department refuses the exemption without notice or reasons. Rohit has a legitimate expectation founded on an express published promise, and he is entitled at least to notice, a hearing and a reasoned decision. Refusal without any of those is arbitrary under Article 14.

Case 2. The Department withdraws the scheme in January for all future units, but honours it for units already established. Perfectly lawful. A policy may be changed prospectively.

Case 3. The Department withdraws the scheme in April with retrospective effect, because a review found the exemption was being misused by shell units. The change of policy is in the public interest and is rational, so the expectation yields; but Rohit, who has already acted on it, is entitled to be heard, and the authority must consider whether a transitional protection is appropriate for units already established.

Case 4. The Department withdraws the exemption only for Rohit's unit and continues it for the others. Not a change of policy at all, but unequal treatment. Squarely arbitrary under Article 14.

Case 5. It transpires that the electricity duty exemption was beyond the Department's statutory power to grant. The expectation fails entirely, because no expectation can be founded on an illegality, however clearly the scheme promised it.

Case 6. Rohit had not built anything and had merely read the scheme with interest. He has a much weaker case. Without reliance he can still say a published policy should be applied consistently, but the strength of the claim is far lower.

What it does NOT mean

It does not mean a promise by the government is binding like a contract. It gives a hearing and a reason, not specific performance.

It does not mean policy cannot change. It means it should not change capriciously, or be departed from in one case only.

It does not mean the doctrine can create a right the statute denies. An expectation contrary to law is not legitimate.

It does not mean every hope is protected. There must be a promise or a settled practice, and it must be reasonable to rely on it.

Quick revision

1. Legitimate expectation arises from an express promise or from a settled and consistent past practice.
2. Two kinds: procedural, an expectation of consultation or a hearing; and substantive, an expectation of a benefit.
3. It is not an enforceable right to the benefit. It entitles the person to be heard and to a rational, public interest reason for any departure.
4. In India it is enforced principally through Article 14, because an arbitrary departure from a policy or practice is unequal treatment: Maneka Gandhi v. Union of India, AIR 1978 SC 597, holds that equality and arbitrariness are sworn enemies and that Article 14 strikes at arbitrariness.
5. Not legitimate where contrary to statute, founded on an unauthorised practice or representation, or where the person knew the policy was under review.
6. Limits: policy may be changed in the public interest; the doctrine cannot override a statute; it does not apply to legislative action; the public interest prevails.
7. Distinguish from promissory estoppel, which needs a clear promise and reliance, and from a legal right, which is enforceable in itself.

Test yourself

1. Explain the doctrine of legitimate expectation. It holds that where a public authority has, by an express promise or by a settled and consistent past practice, led a person to expect a particular benefit or a particular procedure, the law protects that expectation to the extent of requiring the authority to hear him before disappointing it and to give a rational reason in the public interest for any departure. The expectation may be procedural, an expectation of consultation or a hearing before a decision, or substantive, an expectation of the benefit itself. It does not create an enforceable right to the benefit, and it does not prevent a change of policy made in good faith in the public interest; but an arbitrary departure is reviewable, in India principally through Article 14, since Maneka Gandhi v. Union of India, AIR 1978 SC 597, holds that Article 14 strikes at arbitrariness in State action and that equality and arbitrariness are sworn enemies.

2. Distinguish procedural from substantive legitimate expectation. A procedural legitimate expectation is an expectation of a particular procedure, such as consultation, notice or a hearing, before a decision is taken. It is uncontroversial and readily enforced: the authority must either follow the procedure or explain why the public interest requires it to be dispensed with. A substantive legitimate expectation is an expectation of the benefit or result itself, such as the renewal of a licence or the continuation of a concession. It is more difficult, because enforcing it approaches compelling the authority to exercise its discretion in a particular way and so fettering it. The Indian position is that a substantive expectation does not confer a right to the benefit, but requires that any departure be for a rational reason in the public interest and not arbitrary.

3. Can a legitimate expectation prevent a change of government policy? No. A public authority must remain free to change its policy in the public interest, and the doctrine cannot freeze a policy or a law. What it requires is that the change be made in good faith and for a rational reason, and that a person who has already acted on the earlier policy be given an opportunity to be heard and have his position considered, including whether transitional protection is appropriate. Where the change is not a change of policy at all but a departure in the individual case only, that is unequal treatment and is arbitrary under Article 14.

4. Distinguish legitimate expectation from promissory estoppel. Promissory estoppel requires a clear and unambiguous promise and requires the promisee to have altered his position in reliance on it, and its ordinary effect is to hold the promisor to the promise. Legitimate expectation may arise either from a promise or from a settled and consistent past practice, does not require proof of reliance, and ordinarily yields not the benefit itself but a right to be heard and to a reasoned decision. Neither can operate against a statute: the government cannot be estopped from performing a statutory duty, and an expectation contrary to law is not legitimate.

5. When is an expectation not legitimate? When it is contrary to a statute, since no expectation can be founded on an illegality; when the practice relied on was itself irregular or unauthorised; when the representation was made by an officer with no authority to make it; when the person knew that the policy was under reconsideration, so that reliance was not reasonable; and when it rests on a mere hope or wish rather than on any promise or settled practice of the authority.

Where proportionality applies in India

Restrictions on fundamental rights

This is the settled home of the doctrine, and it predates its arrival in administrative law. Article 19 permits restrictions on the freedoms only if they are reasonable, and testing reasonableness has always involved asking whether the restriction goes further than the object requires. Articles 14 and 21 do similar work.

Facts. Maneka Gandhi v. Union of India, AIR 1978 SC 597, concerned a passport impounded under section 10(3)(c) of the Passports Act 1967 by an order reciting only that it was "in public interest", with no hearing given and reasons refused.

Held. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment: equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch. The principle of reasonableness, which legally and philosophically is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence, and the procedure contemplated by Article 21 must answer the test of reasonableness in order to conform to Article 14; it must be right and just and fair, and not arbitrary, fanciful or oppressive.

Why it matters here. It links reasonableness to Article 14 and makes it a general requirement of State action, which is the foundation on which proportionality was later built in India. It also shows the technique: a restriction on the right to travel had to be justified, not merely asserted.

The reasonableness of a statutory restriction

Facts. Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554, concerned the Drugs and Magic Remedies (Objectionable Advertisements) Act 1954, which prohibited advertisements commending drugs for the treatment of the diseases listed in section 3. The petitioners argued that the restraint was disproportionate to the purpose of the Act and to the evil sought to be remedied, relying on the wide definition of advertisement, the use of the word "suggest" in section 3, the uncanalised delegated power to add diseases to the schedule, and the powers of seizure in section 8.

Held. The Act as a whole was upheld: its object was to prevent self-medication and self-treatment, a commercial advertisement of one's own business is not part of the freedom of speech under Article 19(1)(a), and the restrictions were otherwise reasonable. But the words permitting the executive to specify "any other disease or condition" in clause (d) of section 3 were ultra vires as conferring uncanalised and uncontrolled power, no criteria, standards or principle having been laid down. The first part of section 8, empowering seizure and detention on suspicion, imposed an unreasonable restriction, went far beyond the purpose for which the Act was enacted, and failed to provide the safeguards found in other statutes; since excising it would leave the remainder unintelligible, the whole of section 8 fell.

Why it matters here. The treatment of section 8 is proportionality reasoning in substance, decided long before the word became current: the power went further than the object required and lacked the safeguards that would have confined it, so it was struck down while the rest of the Act stood.

Punishment disproportionate to the misconduct

The second Indian home of the doctrine is service law. Where a penalty is so disproportionate to the misconduct as to shock the conscience, a court may interfere, even though the choice of penalty is ordinarily for the disciplinary authority. The usual order is to remit the matter for reconsideration of the penalty rather than to substitute a lesser one, consistently with the principle in Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, that the court is not an appellate authority.

Where it does not apply with full force

For ordinary administrative decisions which do not touch a fundamental right, the Indian courts have generally kept to the narrower standard: the decision is quashed only if it is arbitrary or so unreasonable that no reasonable authority could have reached it. The reason is institutional. Applying the necessity limb requires a court to say that a different, lesser measure would have worked, and that is a judgment about administration rather than about legality.

The objection to proportionality

An answer should engage with it, because it is the reason the doctrine is confined.

It moves the court closer to the merits. Asking whether a less restrictive measure would have achieved the object equally well is close to asking what the court would have done. That collides with Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, which holds that in judicial review the court is not an appellate authority, that the Constitution does not permit it to direct or advise the executive in matters of policy, and that the only check on the court's own exercise of power is the self imposed discipline of judicial restraint.

The answer given by those who support the doctrine is that where a fundamental right is restricted the Constitution itself requires the restriction to be reasonable, so the court is applying a constitutional standard and not substituting its policy. That is why the doctrine is at its strongest under Article 19 and weakest in ordinary administrative review.

A worked example

A municipal corporation finds that a restaurant, Malvani Kitchen, has been serving food after the permitted closing hour on three occasions. Its options under the Act are a warning, a fine of up to twenty thousand rupees, suspension of the licence for up to a month, or cancellation. It cancels the licence.

Step 1, legitimate aim. Enforcing closing hours to prevent nuisance to residents. Legitimate.

Step 2, rational connection. Cancelling the licence certainly stops the breaches. Connected.

Step 3, necessity. Could a lesser measure have achieved the aim? A fine, or a short suspension, plainly could. Three breaches of closing hours do not require the destruction of the business. The measure fails at this step.

Step 4, balancing. Even if necessity were arguable, the harm, the loss of a livelihood and the employment of the staff, is out of proportion to the gain, which is the prevention of late night noise that a fine would also prevent.

What the court does. On the punishment line of cases, cancellation on these facts is disproportionate to the misconduct, and the ordinary order is to quash the cancellation and remit the matter to the corporation to reconsider the penalty. The court will not itself substitute a fine, because choosing the penalty is the authority's function.

Now vary it. Suppose the restaurant was found serving food adulterated with a prohibited chemical, causing illness to twelve customers. Cancellation is now proportionate: no lesser measure protects the public, and the balance is plainly in favour of the public.

What it does NOT mean

It does not mean the court chooses the penalty. It quashes and remits.

It does not mean every harsh decision is disproportionate. The penalty must be shockingly disproportionate before a court will interfere in the service law line.

It does not replace Wednesbury unreasonableness in India. The two coexist, and which applies depends on whether a fundamental right is engaged.

It does not apply to the wisdom of policy. Whether a policy should exist is not a proportionality question; whether the means chosen to implement it go further than necessary is.

Quick revision

1. Proportionality: the interference must be no more than is necessary to achieve a legitimate object.
2. Four steps: legitimate aim, rational connection, necessity or minimal impairment, and balancing.
3. Contrast with unreasonableness: proportionality asks about fit and is intense; unreasonableness asks about outrageousness and is deferential.
4. In India it applies fully where a fundamental right is restricted, and in the review of a shockingly disproportionate punishment; ordinary administrative decisions are reviewed on the arbitrariness and unreasonableness standard.
5. Maneka Gandhi v. Union of India, AIR 1978 SC 597: the principle of reasonableness pervades Article 14; the procedure under Article 21 must be right, just and fair; equality and arbitrariness are sworn enemies.
6. Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554: the seizure power in section 8 went far beyond the purpose of the Act and lacked the safeguards other statutes provided, and was struck down as an unreasonable restriction, while the Act stood.
7. The objection is that necessity review approaches the merits: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Test yourself

1. Explain the doctrine of proportionality and its application in India. It requires that administrative or legislative action restricting a right go no further than is necessary to achieve its legitimate object, and it is applied through four questions: whether the aim is legitimate, whether the means are rationally connected to it, whether a less restrictive means would have achieved it equally well, and whether the benefit to the public outweighs the harm to the individual. In India it applies with full force where a fundamental right is restricted, since Article 19 permits only reasonable restrictions and Maneka Gandhi v. Union of India, AIR 1978 SC 597, holds that the principle of reasonableness pervades Article 14 and that a procedure under Article 21 must be right, just and fair. It also applies in service law where a penalty is shockingly disproportionate to the misconduct. For ordinary administrative decisions not touching a fundamental right, the courts have kept to the narrower standard of arbitrariness or Wednesbury unreasonableness.

2. Distinguish proportionality from Wednesbury unreasonableness. Wednesbury unreasonableness asks whether the decision is so unreasonable that no reasonable authority could ever have come to it. The threshold is extreme, the court's role is secondary, and the court says nothing about whether the decision was sensible. Proportionality asks whether the interference exceeded what was necessary to achieve the object, which requires the court to consider whether a lesser measure would have sufficed and to weigh the benefit against the harm. It is therefore a much more intense standard, and it brings the court closer to the merits, which is why in India it is reserved principally for restrictions on fundamental rights and for shockingly disproportionate punishments.

3. State the four part test of proportionality. First, the measure must pursue a legitimate aim, one the law permits. Second, there must be a rational connection between the measure and that aim, so that the means chosen are capable of achieving it. Third, the measure must be necessary, in the sense that no less restrictive alternative would achieve the aim equally well, which is the limb that does most of the work. Fourth, the measure must be proportionate in the strict sense, so that the benefit to the public outweighs the harm caused to the individual right.

4. What is the objection to applying proportionality in ordinary administrative review? That it draws the court into the merits. To decide that a less restrictive measure would have achieved the object equally well, a court must form its own view about how the administration should have acted, which is difficult to distinguish from substituting its judgment for that of the authority the statute chose. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in judicial review the court is not an appellate authority, that the Constitution does not permit it to direct or advise the executive in matters of policy, and that the only check on the court's own power is self imposed judicial restraint. The answer given by supporters of the doctrine is that where a fundamental right is restricted the Constitution itself demands reasonableness, so the court applies a constitutional standard rather than a policy preference.

5. A government servant is dismissed for being absent without leave for two days. Advise. The choice of penalty is ordinarily for the disciplinary authority and a court will not sit in appeal over it. But where a penalty is so disproportionate to the misconduct as to shock the conscience, the courts will interfere. Dismissal, which ends a career and the pension expectations attached to it, for two days of unauthorised absence, would ordinarily be regarded as shockingly disproportionate, particularly where lesser penalties such as censure, withholding of increments or a fine were available. The proper order is not for the court to impose a lighter penalty itself but to quash the order of dismissal and remit the matter to the disciplinary authority for reconsideration of the penalty, since the selection of punishment is that authority's function.

Its strength is that the consequence is real: the decision is quashed, or compensation is ordered. Its weaknesses are cost, delay, the need for a litigant, and the rule that the court reviews legality rather than merit, stated in Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Facts. Unsuccessful candidates for the MBBS and BDS courses in the two government medical colleges of Jammu and Kashmir for 1988-89 challenged the selection as violating earlier directions of the High Court, which had told the State to entrust selection to a statutory independent body and, until then, to one free from executive influence. The State constituted a Competent Authority by a procedure order of 1987. The High Court allowed the petitions and issued a mandamus.

Held. Although the doctrine of separation of powers is not recognised in absolute rigidity, the Constitution makers meticulously defined the functions of the organs, which must function within their own spheres. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive; but while their power is subject to judicial restraint, the only check on the court's own power is the self imposed discipline of judicial restraint. In judicial review of administrative action the court is not an appellate authority, and the Constitution does not permit it to direct or advise the executive in matters of policy or to sermonise on matters within the sphere of the legislature or executive, provided those authorities stay within their constitutional and statutory limits.

Why it matters here. It marks the limit of legal accountability, and explains why the other mechanisms are needed. The courts can enforce legality; they cannot make the administration efficient, honest or responsive, and they say so themselves.

4. Institutional accountability

Bodies created specifically to hold the administration to account, all of which are treated in Module IV:

• The Lokpal at the Union level and the Lokayukta in the States, in [Lokpal: the Lokpal and Lokayuktas Act 2013] and [Lokayukta in Maharashtra: the 1971 Act, and the 2023 Act awaiting commencement];
• The Central Vigilance Commission, in [The Central Vigilance Commission];
• The criminal law of corruption, in [The Prevention of Corruption Act 1988];
• Commissions of inquiry, in [Public Inquiries and the Commissions of Inquiry Act 1952].

5. Accountability to the public directly

The Right to Information Act 2005 is the most important development of the last generation, because it changes the direction of accountability: instead of the administration reporting upwards, the citizen may demand the record. Section 4 requires proactive publication and reasons for decisions. It is treated in [Transparency and the Right to Information: a Constitutional Imperative] and the chapters that follow it.

Citizens' charters, service standards and grievance redress systems are the internal version, and they are treated in [Accountability and Responsiveness: Problems and Perspectives].

The press and civil society supply the scrutiny that makes the rest work, and are discussed in [Use of Media, Lobbying and Public Participation].

The accountability of the accountability mechanisms

Worth one paragraph, because it makes an answer stand out. Each mechanism has a gap that another is supposed to fill. The legislature cannot examine individual decisions, so the courts do. The courts cannot examine efficiency or honesty, so the audit and vigilance machinery does. The audit machinery reports and does not punish, so the criminal law does. The criminal law is slow and requires proof beyond reasonable doubt, so the Ombudsman machinery was proposed. And none of them reaches the individual citizen's ordinary grievance, which is what the Right to Information Act and grievance redress systems address. Accountability in India is therefore not one institution but a mesh, and its failures are usually failures of the joints.

A worked example

A district administration builds a bridge which collapses within a year. Trace the accountability.

Notice how many mechanisms exist and how few of them can, by themselves, produce a consequence. That is the honest picture, and stating it is worth more than reciting the list.

What it does NOT mean

It does not mean accountability equals liability. Being answerable is not the same as being liable to pay. Liability is the subject of the chapters that follow.

It does not mean the courts are the primary mechanism. They are the most visible, and they operate only when somebody sues.

It does not mean a recommendatory body is useless. A report that is published, debated and reported in the press has real force, even without a power to punish.

It does not mean accountability and independence conflict. A tribunal must be independent of the executive and accountable to the public through open hearings and reasoned decisions: [Tribunalisation and the Threat to Judicial Independence: the Tribunals Reforms Act 2021].

Quick revision

1. Three questions: accountable to whom, for what, and with what consequence.
2. Political: ministerial responsibility under Articles 75(3) and 164(2), questions, debates, no confidence, parliamentary committees. Weak sanction under a disciplined majority.
3. Financial: the Comptroller and Auditor General under Article 148, reports laid under Article 151, examined by the Public Accounts Committee.
4. Legal: judicial review, natural justice, the writs, and State liability. Its limit is that the court reviews legality and not merit: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.
5. Institutional: Lokpal and Lokayukta, the Central Vigilance Commission, the Prevention of Corruption Act 1988, commissions of inquiry.
6. Direct: the Right to Information Act 2005, especially section 4, citizens' charters and grievance redress, the press and civil society.
7. The mechanisms overlap and the failures are usually at the joints; most produce a report rather than a consequence.

Test yourself

1. What is public accountability, and how is it secured in India? It is the principle that those who exercise public power must be answerable for its exercise. In India it is secured through several overlapping mechanisms. Politically, the Council of Ministers is collectively responsible to the legislature under Articles 75(3) and 164(2), and the House scrutinises the administration through questions, debates and its committees. Financially, the Comptroller and Auditor General appointed under Article 148 audits the accounts and his reports are laid before the legislature under Article 151 and examined by the Public Accounts Committee. Legally, judicial review, the rules of natural justice, the writs under Articles 32 and 226, and the liability of the State in tort and contract provide redress. Institutionally, the Lokpal and Lokayuktas, the Central Vigilance Commission, the Prevention of Corruption Act 1988 and commissions of inquiry address maladministration and corruption. Directly, the Right to Information Act 2005 allows any citizen to obtain the record, and citizens' charters, grievance redress systems and a free press supply the rest.

2. What are the limits of judicial accountability? Judicial review operates only when a litigant with standing brings a case, and it is slow and expensive. It examines legality, not merit: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in judicial review the court is not an appellate authority, that the Constitution does not permit it to direct or advise the executive in matters of policy, and that the only check on the court's own power is self imposed judicial restraint. So a court can quash a decision made unlawfully but cannot make the administration efficient, honest or responsive, and cannot decide whether a policy is wise. Those gaps are what the audit, vigilance, Ombudsman and information mechanisms exist to fill.

3. Why is ministerial responsibility a weak form of accountability in practice? Because collective responsibility operates through a legislature in which the Government commands a majority, so the ultimate sanction of a vote of no confidence is rarely available. A minister answers for the policy of the department rather than for an individual officer's decision affecting an individual citizen, and the answer to a question is itself the whole of the consequence in most cases. The working parts of legislative accountability are therefore the committees, particularly the Public Accounts Committee acting on the reports of the Comptroller and Auditor General, rather than the floor of the House.

4. How has the Right to Information Act 2005 changed public accountability? It reversed the direction of the flow. Under the older mechanisms the administration reported upwards, to a minister, a committee or an auditor, and the citizen learned what those bodies chose to publish. Under the Act a citizen may demand the record directly, and section 4 obliges every public authority to publish a great deal without being asked, including its rules, instructions, manuals, the norms it has set for the discharge of its functions and the reasons for its administrative and quasi-judicial decisions. That makes every other mechanism more effective, because the material on which a question, an audit objection, a complaint to a Lokayukta or a writ petition can be founded is now obtainable.

5. "India has many accountability mechanisms and little accountability." Discuss. The criticism has force at the point of consequence. India has a dense mesh of mechanisms: legislative committees, the Comptroller and Auditor General, judicial review, commissions of inquiry, the Central Vigilance Commission, the Lokpal and Lokayuktas, the Prevention of Corruption Act 1988 and the Right to Information Act 2005. But most of them produce a report or a recommendation rather than a sanction. The audit report recommends, the inquiry commission's report is not a judgment, the vigilance commission advises, and the Lokayukta reports to the competent authority. The mechanisms that do produce a consequence, judicial review and criminal prosecution, are slow, require a complainant or an investigating agency and, in the case of the courts, are confined to legality. The answer is not more mechanisms but better joints between them, and in particular acting on what the existing bodies report.

2. The chain runs back to 1858. Article 300 points to the Government of India Act 1935, section 176 of which pointed to the Government of India Act 1915, section 32 of which pointed to the Government of India Act 1858, section 65 of which made the Secretary of State in Council liable in the same way as the East India Company would have been. So the modern liability of the Indian State is measured by the liability of a trading company that ceased to exist in 1858.

3. Parliament can change it and has not. The words "subject to any provisions which may be made by Act of Parliament" are an open invitation to legislate, and no such Act has been passed. That is the single most important criticism of this branch of the law, and it was made by the Supreme Court itself.

Do not cite Articles 294 and 295 as the source of liability. They deal with the devolution of property, assets, rights and liabilities on the commencement of the Constitution. That distinction was drawn expressly in the first of the cases below.

The foundational case

Facts. State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933, arose out of an accident on 11 February 1952. The husband of the first respondent and father of the second was knocked down by a Government jeep car driven rashly and negligently by an employee of the State of Rajasthan, while the vehicle was being taken from the repair shop to the Collector's residence, and he died in hospital. The trial court decreed the suit ex parte against the driver but dismissed it against the State, holding that because the car was maintained for the use of the Collector in the discharge of his official duties, that alone absolved the State of vicarious liability even though the vehicle was not being used for any purpose of the State at the time. The High Court decreed the suit against the State as well.

Held. The liability of the State for damages in respect of a tortious act committed by its servant within the scope of his employment and functioning as such is the same as that of any other employer. The relevant provisions for determining the extent of that liability are not Articles 294 and 295, which are primarily concerned with the devolution of rights, assets and liabilities, but Article 300(1) of the Constitution.

Why it matters. Two propositions. First, Article 300(1) and not Articles 294 or 295 is the operative provision. Second, the ordinary law of master and servant applies to the State, so that driving an official's car back from a repair shop is not a sovereign function and attracts liability like anybody else's. It is the high point of State liability, and the next case cut it back.

Where the law stands

The full working out of the sovereign and non-sovereign distinction, and its modern narrowing, is the subject of [Sovereign and Non-Sovereign Functions]. In outline the position is this.

1. Non-sovereign functions: the State is liable like any private employer. This covers the commercial and welfare activities of the modern State, which is most of what it does.
2. Sovereign functions: immunity was claimed, and was upheld at its widest in the 1964 decision on the negligence of police officers exercising statutory powers of seizure.
3. The modern position confines immunity to the primary and inalienable functions of the State, and the Supreme Court has said that watertight compartmentalisation into sovereign and non-sovereign is itself unsound.
4. The constitutional route goes round the whole distinction, and is set out below.

The constitutional route: compensation in public law

This is the most important development in this area and it deserves to be stated separately, because it does not depend on Article 300 at all.

Where a public officer's act violates a fundamental right, particularly the right to life and personal liberty under Article 21, the Supreme Court and the High Courts have awarded compensation in the exercise of the writ jurisdiction under Articles 32 and 226. That is not damages in tort; it is a public law remedy for the enforcement of a fundamental right, and the sovereign function defence has no application to it, because the State has no sovereign right to violate a fundamental right.

The consequences are important and are worth listing.

• The claimant need not file a civil suit and wait years.
• The defence that the officers were exercising sovereign powers is unavailable.
• The award is without prejudice to a suit for damages in the ordinary courts.
• It is available where the violation is gross and the facts are not seriously in dispute, since a writ court does not try disputed questions of fact.

The leading cases on this line, on custodial death and on unlawful detention, are identified in authorities/cases.json but have not yet been read in a session, so they are named there and are not worked in this chapter. A student should look them up under the heading of compensation for violation of Article 21.

Comparison with England

Worth a short paragraph, because the Indian rule is a fossil of the English one.

In England the Crown was immune from suit in tort until the Crown Proceedings Act 1947, which made the Crown liable in tort broadly as a private person of full age and capacity, subject to exceptions. India inherited the pre-1947 position through the chain of Government of India Acts and has never enacted the Indian equivalent. So the country that exported the immunity abolished it in 1947, and the country that imported it still has it.

A worked example

A State Transport Corporation bus, driven negligently by its driver on a scheduled route, injures a pedestrian, Shalini Deshpande.

1. Is this a tort? Yes, negligence.
2. Was it in the course of employment? Yes, the driver was driving the bus on his route.
3. Which provision? Article 300(1) for the State; if the Corporation is a separate legal person it is sued in its own name and Article 300 does not arise at all.
4. Is running a bus service a sovereign function? No. It is a commercial or welfare activity that a private person could perform, so the ordinary law applies and the State or the Corporation is liable exactly as a private employer would be: State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933.
5. Vary it: the driver had taken the bus on a private errand to his village at night. Outside the course of employment, and the employer is not liable, though the driver is.
6. Vary it again: Shalini was injured when police, dispersing a riot, struck her with a lathi. Now the sovereign function argument is available and the analysis is in the next chapter; and if the force used was grossly excessive, the Article 21 route to compensation is open and the sovereign function defence does not answer it.

Distinctions worth having straight

What it does NOT mean

It does not mean Article 300 creates liability. It carries forward the earlier law and provides the name in which the Government sues and is sued.

It does not mean the State is liable for everything its servants do. The act must be in the course of employment, and the sovereign function defence, however narrowed, still exists.

It does not mean the position cannot be changed. Article 300(1) expressly contemplates an Act of Parliament, and the Supreme Court has suggested one.

It does not mean compensation under Article 32 is damages. It is a public law remedy for a constitutional wrong, granted without prejudice to a civil suit.

Quick revision

1. Tort: a civil wrong other than breach of contract, remedied by unliquidated damages. The State's liability is vicarious.
2. Article 300(1): the Union sues and is sued as the Union of India, a State by its name, subject to any Act of Parliament or of the State legislature, and in the like cases as the Dominion of India and the corresponding Provinces might have sued or been sued.
3. It is procedural and carries forward the substantive law through the Government of India Acts of 1935, 1915 and 1858 to the liability of the East India Company.
4. Articles 294 and 295 concern devolution and are not the source of liability.
5. State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933: the State's liability for a tort by its servant in the scope of employment is the same as that of any other employer, and Article 300(1) is the operative provision. A jeep driven from the repair shop to the Collector's residence was not a sovereign function.
6. Compensation for violation of a fundamental right may be awarded under Articles 32 and 226, and the sovereign function defence does not apply to it.
7. England abolished Crown immunity by the Crown Proceedings Act 1947. India has never enacted an equivalent, although Article 300(1) invites it.

Test yourself

1. On what basis is the State liable in tort in India? On Article 300(1) of the Constitution, which provides that the Government of India may sue or be sued by the name of the Union of India and the Government of a State by the name of the State, subject to any provision made by Parliament or the State legislature, in the like cases as the Dominion of India and the corresponding Provinces or Indian States might have sued or been sued had the Constitution not been enacted. The Article is procedural: it names the party and carries forward the substantive position under the Government of India Acts of 1935, 1915 and 1858, the last of which measured the liability of the Secretary of State in Council by that of the East India Company. In State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933, the Supreme Court confirmed that Article 300(1), and not Articles 294 and 295 which deal with devolution, is the operative provision, and held that the State's liability for a tort committed by its servant within the scope of his employment is the same as that of any other employer.

2. Discuss State of Rajasthan v. Vidhyawati. A Government jeep, being driven from the repair shop to the Collector's residence by a State employee, was driven rashly and negligently and knocked down a pedestrian who died in hospital. The trial court decreed against the driver but dismissed the suit against the State, on the view that because the car was maintained for the Collector's official use the State was absolved even though the vehicle was not then being used for any State purpose. The High Court decreed against the State too, and the Supreme Court affirmed, holding that the liability of the State for a tortious act committed by its servant within the scope of his employment is the same as that of any other employer, and that Article 300(1) rather than Articles 294 and 295 governs. The case is the high water mark of State liability and represents the position before it was narrowed by the later decision on the negligence of police officers exercising statutory powers of seizure.

3. Why is the liability of the Indian State in tort said to rest on nineteenth century law? Because Article 300(1) does not lay down a rule of its own but preserves the position that obtained immediately before the Constitution. That position was fixed by section 176 of the Government of India Act 1935, which referred back to section 32 of the Government of India Act 1915, which referred back to section 65 of the Government of India Act 1858, under which the Secretary of State in Council was liable in the same manner as the East India Company would have been. The modern liability of the Indian State is therefore measured by the liability of a trading company which ceased to exist in 1858, and although Article 300(1) expressly contemplates an Act of Parliament altering the position, no such Act has been passed.

4. What is compensation in public law, and how does it differ from damages in tort? It is compensation awarded by the Supreme Court under Article 32, or a High Court under Article 226, for the violation of a fundamental right, most often the right to life and personal liberty under Article 21. It differs from damages in tort in forum, since it is obtained on a writ petition rather than by suit; in basis, since it rests on the breach of a constitutional right rather than on the law of torts operating through Article 300(1); and crucially in that the sovereign function defence has no application, because the State has no sovereign right to violate a fundamental right. It is granted where the violation is gross and the facts are not seriously disputed, since a writ court does not try disputed questions of fact, and it is without prejudice to a suit for damages in the ordinary courts.

5. Compare the Indian position with the English. In England the Crown enjoyed immunity from suit in tort, the maxim being that the King can do no wrong, until the Crown Proceedings Act 1947 made the Crown liable in tort substantially as a private person of full age and capacity, subject to specified exceptions. India received the pre-1947 English position through the chain of Government of India Acts and preserved it by Article 300(1), and has never enacted an equivalent statute. The result is that the immunity England abolished by statute in 1947 survives in India, cut down only by judicial decisions confining sovereign functions to the primary and inalienable functions of the State and by the development of compensation in public law for the violation of fundamental rights.

Held. The liability of the State for damages for a tortious act committed by its servant within the scope of his employment and functioning as such is the same as that of any other employer. The relevant provision is Article 300(1), not Articles 294 and 295, which concern the devolution of rights, assets and liabilities.

Why it matters. Driving a car from a workshop to a residence is an act any private employer's driver might perform. The State was liable, and for two years it looked as though the sovereign function defence would be confined to genuinely governmental acts.

Stage 2: immunity at its widest

Facts. Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039. The appellant was a firm dealing in bullion at Amritsar. Its partner was taken into custody by police officers of the State of Uttar Pradesh on suspicion of possessing stolen property, and gold was seized from him in the exercise of statutory powers. The police were negligent in dealing with the safe custody of the gold, which was misappropriated by a head constable who fled to Pakistan, and it was never returned. The firm sued the State for its value. The trial court decreed the suit; the High Court dismissed it.

Held. The appeal was dismissed. The powers to arrest a person, to search him and to seize property found with him are powers conferred on specified officers by statute, and are powers which can properly be characterised as sovereign powers. Therefore, although the negligent act was committed by employees of the State in the course of their employment, the claim against the State could not be sustained, because the employment was of the category which could claim the special characteristic of sovereign power. The earlier steam navigation case was approved and Vidhyawati was distinguished. The Court suggested that legislation be passed to regulate and control the liability of the State for the negligent acts of its servants.

Why it matters. It is the high water mark of immunity, and its reasoning is the reason the doctrine was attacked. Note precisely what it did: it treated the fact that the power was conferred by statute on specified officers as making it sovereign. On that reasoning almost every administrative power is sovereign, since almost all of them are statutory, and the exception would swallow the rule.

Note the date. The case was decided on 29 September 1964 and reported at AIR 1965 SC 1039, so a student who writes "Kasturi Lal (1965)" is quoting the report year and not the decision year.

Stage 3: immunity confined

Facts. N. Nagendra Rao and Co. v. State of Andhra Pradesh, AIR 1994 SC 2663. Stocks of fertiliser and food grains belonging to the appellant firm were seized under control orders issued under the Essential Commodities Act 1955. The goods remained in the custody of the officers, deteriorated, and were not disposed of even after the Sessions Judge directed their return. The firm sued for the value of the damaged stock. The trial court decreed the claim, holding that the relationship was one of bailor and bailee, that deterioration in custody was not the exercise of a sovereign function, and that once goods were seized it was the State's responsibility to keep them in proper condition. The High Court reversed, applying Kasturilal.

Held. The State cannot claim immunity for the negligence of its officers in the discharge of statutory duties merely by invoking sovereignty. Sovereign immunity survives only for the primary and inalienable functions of the State, such as the defence of the country, the raising and maintenance of the armed forces, the making of peace or war, foreign affairs and the power to acquire and retain territory, which are indicative of external sovereignty, are political in nature, and are not amenable to the jurisdiction of an ordinary civil court. But there the immunity ends. No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner because it is sovereign, and no legal or political system today can place the State above the law, since it is unjust and unfair for a citizen to be deprived of his property illegally by the negligent act of officers of the State without any remedy. Any watertight compartmentalisation of the functions of the State as sovereign and non-sovereign, or governmental and non-governmental, is not sound and is contrary to modern jurisprudential thinking.

Why it matters. It is the modern law and it does three things. It restricts immunity to a short list of primary and inalienable functions. It rejects the reasoning that a statutory power is for that reason sovereign, which was Kasturilal's reasoning. And it questions the distinction itself.

The position today, stated in four propositions

1. The general rule is liability. The State is liable for the torts of its servants committed in the course of employment, like any other employer.
2. Immunity is exceptional and narrow, confined to the primary and inalienable functions: defence, the armed forces, war and peace, foreign affairs, and the acquisition and retention of territory.
3. A statutory power is not sovereign merely because it is statutory. That was Kasturilal's error, and Nagendra Rao corrects it.
4. The distinction is bypassed altogether where a fundamental right is violated, because compensation is then awarded in public law under Articles 32 and 226 and immunity is no answer: [Tortious Liability of the State].

Proposition 4 is what makes the topic manageable in practice. The situations in which the sovereign function defence used to be decisive, police excess, custodial injury, unlawful detention, are exactly the situations in which the constitutional remedy is now available, so the defence is not reached.

The criticisms of the distinction

An answer should be able to say why the doctrine is disliked.

1. It is an anachronism. It derives from the dual capacity of a trading company abolished in 1858, and the modern State does not have two capacities in that sense.
2. The test is unworkable. Asking whether a private person could perform the function gives no clear answer for regulation, licensing, inspection or public health.
3. It produces arbitrary results. A person injured by a government bus recovers; a person whose goods are lost by a police officer did not. The wrong is the same to the victim.
4. England abolished it. The Crown Proceedings Act 1947 made the Crown liable substantially as a private person, and India, which inherited the rule from England, has kept it.
5. The invitation in Article 300(1) has never been accepted. The Article expressly contemplates an Act of Parliament, and the Supreme Court asked for one in Kasturilal itself.

A worked example

Ganesh Rane suffers loss in each of the following ways. Advise on liability.

1. A State Transport bus, negligently driven, damages his shop front. Non-sovereign. Running a bus service is a commercial activity a private person could perform. The State or the corporation is liable on ordinary principles: State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933.
2. Excise officers seize his stock under a statutory power, store it carelessly, and it perishes. This is Nagendra Rao precisely. Seizure under a control order is a statutory power, but it is not a primary and inalienable function of the State, so the immunity does not extend to it and the State is liable for the negligence in custody.
3. An army truck on a training exercise for the defence of the frontier collides with his car. Here the immunity is most likely to be available, because the maintenance of the armed forces is among the primary and inalienable functions named in Nagendra Rao. The result may still turn on how closely the act is connected with that function.
4. He is detained by the police for eleven days without any order and is beaten in custody. Do not analyse this as a tort at all. It is a violation of Article 21, and the remedy is compensation in public law under Articles 32 or 226, to which the sovereign function defence is no answer.
5. A municipal hospital's negligence in treatment causes him permanent injury. Running a hospital is not a primary and inalienable function. Liability follows on ordinary principles.

Distinctions worth having straight

What it does NOT mean

It does not mean the State is immune whenever it acts under a statute. That was the reasoning of the 1964 decision and it is no longer the law.

It does not mean Kasturilal has been overruled in terms. It has been confined, and the sources this book is written from do not record its formal overruling. What can be said is that its reasoning was expressly departed from in Nagendra Rao, and that its practical scope is now very small.

It does not mean the distinction has been abolished. Nagendra Rao criticises it and confines it; it does not remove it.

It does not mean a claimant must always argue about it. Where a fundamental right is violated, the constitutional remedy avoids the question entirely.

Quick revision

1. Origin: the East India Company's dual capacity, trading and sovereign, carried into Article 300(1) through the Government of India Acts.
2. Old test: could a private person have performed the act?
3. State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933: a jeep driven from the workshop to the Collector's residence; liability the same as any other employer; Article 300(1) is the operative provision.
4. Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, decided 29 September 1964: gold seized under statutory police powers and lost through negligence; no liability, because arrest, search and seizure are powers conferred by statute on specified officers and are sovereign powers. The Court suggested legislation.
5. N. Nagendra Rao and Co. v. State of Andhra Pradesh, AIR 1994 SC 2663: fertiliser seized under the Essential Commodities Act 1955 and allowed to deteriorate; immunity survives only for the primary and inalienable functions, defence, armed forces, war and peace, foreign affairs and territory; but there the immunity ends; and watertight compartmentalisation into sovereign and non-sovereign is not sound.
6. Where a fundamental right is violated, compensation is awarded in public law and immunity is no answer.
7. Criticisms: an anachronism, an unworkable test, arbitrary results, abolished in England by the Crown Proceedings Act 1947, and Parliament's failure to legislate although Article 300(1) invites it.

Test yourself

1. Explain the distinction between sovereign and non-sovereign functions and its effect on State liability. Functions which by their nature can be performed only by a sovereign attract immunity from liability in tort; functions which a private individual could equally perform do not. The distinction descends from the dual capacity of the East India Company, which was liable for its trading acts but not for its sovereign ones, and it was carried into Indian law by the Government of India Acts and preserved by Article 300(1). The old test asked whether a private person could have done the act. Its effect was that the State escaped liability for a large class of wrongs, which was criticised as arbitrary, since the injury to the victim is the same whichever capacity the officer was acting in.

2. Trace the development of the law through the three leading cases. In State of Rajasthan v. Mst. Vidhyawati, AIR 1962 SC 933, a government jeep being driven from the repair shop to the Collector's residence killed a pedestrian, and the Supreme Court held the State liable as any other employer would be, Article 300(1) being the operative provision. In Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, gold seized from a bullion dealer under statutory police powers was lost through the negligence of the police, and the Court held there was no liability, because the powers of arrest, search and seizure are conferred by statute on specified officers and are properly characterised as sovereign powers; it suggested that Parliament legislate. In N. Nagendra Rao and Co. v. State of Andhra Pradesh, AIR 1994 SC 2663, stocks seized under the Essential Commodities Act 1955 deteriorated in official custody, and the Court held that immunity survives only for the primary and inalienable functions of the State, that beyond those the immunity ends, and that watertight compartmentalisation into sovereign and non-sovereign functions is not sound.

3. What are the primary and inalienable functions of the State? Those identified in N. Nagendra Rao and Co. v. State of Andhra Pradesh, AIR 1994 SC 2663: the defence of the country, the raising and maintenance of the armed forces, the making of peace or war, foreign affairs, and the power to acquire and retain territory. They are described as indicative of external sovereignty and political in nature, and as not amenable to the jurisdiction of an ordinary civil court. Everything outside that short list attracts ordinary liability.

4. Criticise the sovereign and non-sovereign distinction. It is an anachronism, deriving from the dual capacity of a trading company that ceased to exist in 1858 and having no counterpart in the functions of a modern welfare State. The test is unworkable, because asking whether a private person could perform a function gives no answer for regulation, licensing, inspection or public health. It produces arbitrary results, since a person injured by a government bus recovers while a person whose goods are lost by a police officer did not, though the wrong to each is the same. England, from which the rule was received, abolished Crown immunity by the Crown Proceedings Act 1947, and India has not followed. And Article 300(1) expressly contemplates an Act of Parliament fixing the liability of the State, which the Supreme Court requested in Kasturilal itself and which has never been enacted.

5. Police officers seize a trader's goods under a statutory power and the goods are ruined through their negligence. Advise. The State is liable. This is the situation in N. Nagendra Rao and Co. v. State of Andhra Pradesh, AIR 1994 SC 2663, where stocks seized under the Essential Commodities Act 1955 deteriorated in official custody. The State cannot claim immunity for the negligence of its officers in discharging statutory duties merely by invoking sovereignty; immunity is confined to the primary and inalienable functions such as defence, the armed forces, war and peace, foreign affairs and territory, and seizure and custody of goods is not among them. The earlier decision in Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, which treated statutory powers of seizure as sovereign, is not to be followed on that reasoning. If the seizure also violated a fundamental right, compensation may in addition be sought in public law under Articles 32 or 226, where the sovereign function defence is no answer at all.

Why the form is insisted on

The requirements look technical, and a student should be able to say why they exist. There are three reasons.

1. To protect the public revenue. If any officer could bind the Government, public money would be exposed to unauthorised commitments.
2. To fix responsibility. A contract expressed to be made by the President identifies who is bound and who authorised it.
3. To ensure deliberation. The requirement of authorisation means somebody with authority has considered the transaction.

The consequence of non-compliance

The provisions are mandatory, not directory. A contract that does not satisfy all three requirements is void, and no suit lies on it against the Government.

That produces three well known consequences.

There is no ratification. A void contract cannot be ratified by subsequent conduct, because there was never a contract to ratify.

There is no estoppel. The Government cannot be estopped from pleading the invalidity of a contract that fails Article 299, because to allow the plea would be to enforce what the Constitution says is void. This is the point where [Estoppel and Waiver against the Government] meets this chapter.

But there is restitution. This is the practical answer and it is what saves the innocent contractor.

Section 70 of the Contract Act: the way round

Section 70 of the Indian Contract Act 1872 provides, in substance, that where a person lawfully does anything for another, or delivers anything to him, not intending to do so gratuitously, and the other enjoys the benefit of it, the latter is bound to make compensation in respect of, or to restore, the thing so done or delivered.

Applied here: if a contractor supplies goods or does work under an agreement void for want of compliance with Article 299, and the Government has taken the benefit, the Government must pay compensation for what it received.

Three points about the remedy, and each is examinable.

1. It is not a claim on the contract. The contract is void; the claim is quasi-contractual, for the value of the benefit received.
2. The measure is the benefit, not the contract price. The contractor recovers what the work or goods were worth, not necessarily what he had agreed to charge.
3. The Government must have enjoyed the benefit. If the goods were never delivered or the work never accepted, section 70 does not assist.

This is the balance the law strikes: the constitutional form is protected, and the honest contractor is not left to bear a loss the Government has profited from.

Article 299(2): personal immunity

Article 299(2) provides that neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purposes of the Constitution, or for the purposes of any enactment relating to the Government of India previously in force, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect of it.

The purpose is straightforward: an officer who signs a contract on behalf of the Government is not making himself a party. The immunity is from personal liability on the contract; it does not protect an officer from disciplinary action, or from liability for a tort or a criminal offence.

The public law dimension

A modern answer should not stop at Article 299, because much of the litigation about government contracts is not about the form at all.

Government contracts are subject to Article 14. The State cannot award contracts arbitrarily, or refuse to deal with a person for irrelevant reasons. The requirements of a fair and transparent tender process, equal treatment of bidders and reasons for rejection all follow from Article 14 and from Maneka Gandhi v. Union of India, AIR 1978 SC 597, which held that Article 14 strikes at arbitrariness in State action and that equality and arbitrariness are sworn enemies.

A writ may lie in the contractual field, at the pre-contract stage. The award of a tender is an administrative decision and may be challenged under Article 226 for arbitrariness or mala fides. Once the contract is concluded, a dispute about its performance is ordinarily a matter for a civil suit or arbitration, not for a writ petition, though the line is not absolute.

Legitimate expectation may arise from a published tender policy, in the sense discussed in [The Doctrine of Legitimate Expectation].

A worked example

The Public Works Department invites tenders for repairing a school building. Ashwin Kamble's tender is accepted by a letter from the Executive Engineer which reads "Your tender is accepted. Commence work immediately." No formal agreement is executed and the letter does not state that the contract is made by the Governor.

Is there a valid contract? No. The letter is not expressed to be made by the Governor and is not executed on his behalf, so Article 299(1) is not satisfied and the contract is void.

Ashwin completes the repairs and the school is used. Can he recover? He cannot sue on the contract, but he can claim under section 70 of the Indian Contract Act 1872: he lawfully did work for the Government, not gratuitously, and the Government has enjoyed the benefit. He recovers the value of the work.

Can he recover the agreed price of eight lakh rupees? Not necessarily. The measure is the benefit conferred, so if the work was worth six lakh he recovers six lakh.

Can the Government be estopped from pleading Article 299? No. The requirements are mandatory and a constitutional invalidity cannot be cured by estoppel.

Can the Executive Engineer be sued personally on the contract? No. Article 299(2) protects a person executing a contract on behalf of the Governor from personal liability.

Suppose instead the tender was rejected and given to a bidder who quoted higher, with no reasons. Now the issue is not Article 299 but Article 14: the award of a tender is administrative action and arbitrariness in it is reviewable under Article 226.

Distinctions worth having straight

What it does NOT mean

It does not mean the Government cannot contract. Article 298 gives it a wide power.

It does not mean an oral government contract can never bind. It means it cannot bind under Article 299, and the remedy lies in restitution under section 70.

It does not mean the officer is personally liable. Article 299(2) says the opposite.

It does not mean government contracts are outside public law. The award of a contract is administrative action subject to Article 14.

Quick revision

1. Article 298: power to carry on trade and to contract for any purpose, as part of the executive power.
2. Article 299(1): three requirements. Expressed to be made by the President or Governor; executed on his behalf; by a person authorised by him.
3. The requirements are mandatory. Non-compliance makes the contract void; there is no ratification and no estoppel against the Constitution.
4. Section 70 of the Indian Contract Act 1872 allows recovery of the value of the benefit conferred, which is quasi-contractual and measured by benefit rather than by the contract price.
5. Article 299(2): neither the President nor the Governor nor the person executing the contract on their behalf is personally liable on it.
6. Reasons for the form: to protect the revenue, to fix responsibility, and to ensure deliberation.
7. Government contracts are also subject to Article 14, so the award of a tender may be challenged for arbitrariness under Article 226: Maneka Gandhi v. Union of India, AIR 1978 SC 597.

Test yourself

1. State the requirements of a valid government contract under Article 299. Three. The contract must be expressed to be made by the President in the case of the Union, or by the Governor in the case of a State; it must be executed on behalf of the President or the Governor; and it must be executed by a person whom the President or Governor has directed or authorised to do so, in the manner directed. All three are mandatory, and a contract that fails any of them is void and unenforceable against the Government. Article 299(2) adds that neither the President nor the Governor, nor the person executing the contract on their behalf, is personally liable in respect of it.

2. What is the effect of non-compliance with Article 299(1), and what remedy has the contractor? The contract is void. It cannot be enforced against the Government, it cannot be ratified by subsequent conduct because there was never a contract to ratify, and the Government cannot be estopped from pleading the invalidity, since estoppel cannot make valid what the Constitution declares void. The contractor is nevertheless not without remedy: if he has lawfully done work or delivered goods, not intending to do so gratuitously, and the Government has enjoyed the benefit, he may recover compensation under section 70 of the Indian Contract Act 1872. That claim is quasi-contractual, and the measure is the value of the benefit conferred rather than the price agreed under the void contract.

3. Why are the requirements of Article 299 held to be mandatory? Because their purpose would be defeated if they were directory. They exist to protect the public revenue from unauthorised commitments made by officers without authority, to fix responsibility by identifying on the face of the contract who is bound and who authorised it, and to ensure that a person with authority has applied his mind to the transaction. If substantial compliance sufficed, any officer's letter could bind the Government, and the safeguard would be worthless.

4. Can the Government be sued for arbitrariness in awarding a contract? Yes, at the stage of award. The decision to accept or reject a tender is administrative action by the State, and it is subject to Article 14, which, as Maneka Gandhi v. Union of India, AIR 1978 SC 597, holds, strikes at arbitrariness in State action, equality and arbitrariness being sworn enemies. A tender process must therefore be fair and transparent, bidders must be treated equally, and a rejection for irrelevant reasons or for an improper purpose may be challenged by writ petition under Article 226. Once the contract has been concluded, a dispute about its performance is ordinarily for a civil suit or arbitration rather than for a writ court.

5. Distinguish the contractual liability of the State from its tortious liability. Contractual liability rests on Articles 298 and 299, which are provisions of the Constitution itself: Article 298 confers the power to contract and Article 299 prescribes the form, non-compliance with which makes the contract void, with a restitutionary fallback under section 70 of the Indian Contract Act 1872 and personal immunity for the executing officer under Article 299(2). Tortious liability rests on Article 300(1), which lays down no rule of its own but carries forward the pre-Constitution position through the Government of India Acts, so that the peculiar defence is the sovereign function immunity rather than want of form, and the modern fallback for a claimant is compensation in public law under Articles 32 and 226 where a fundamental right has been violated.

Note the difference. Section 129 concerns a record and the permission of the head of the department. Section 130 concerns a communication and the officer's own view. Students routinely merge them.

Whose privilege is it

It is the public's, not the Government's. That single proposition answers most examination questions in this area, and three consequences follow.

1. It cannot be waived for convenience. The Government cannot claim privilege to conceal an embarrassing document and abandon it when the document turns out to help.
2. The court may take the objection. Since the interest protected is the public interest, the court may consider the point even if the Government does not.
3. Its scope is measured by injury to the public, not by the Government's preference. The question is never whether the Government would rather not produce; it is whether producing would injure the public interest.

How the privilege is claimed

The procedure matters and is examinable.

1. The claim is made on affidavit, ordinarily by the Minister in charge or by the Secretary of the department, who must have read the document.
2. The affidavit must state that the document belongs to a class, or contains matter, whose disclosure would injure the public interest, and must give the reasons as far as they can be given without disclosing the very matter protected.
3. A bare assertion is not enough. An affidavit that recites the words of the section without applying the mind to the document is defective.
4. The court decides. It may inspect the document itself, in private, to determine whether the claim is well founded.

Class claims and contents claims

The distinction runs through the whole subject.

The movement of the law has been from accepting class claims almost automatically towards insisting on a demonstrated injury, and towards the court, rather than the executive, being the judge of that injury.

The balance the court strikes

The court weighs two public interests against each other.

The public interest in the administration of justice, which requires that all relevant evidence be available so that cases are decided correctly.

The public interest in the effective working of government, which may require confidentiality for defence, foreign relations, security, the detection of crime and the frank exchange of advice.

Neither is absolute, and the weighing is done case by case. Where the document is essential to establishing a serious wrong by the State, the first interest is strong; where the subject is defence or the identity of an informant, the second is.

The relationship with the Right to Information Act 2005

A modern answer must connect the two, because they cover overlapping ground with different machinery.

• The Bharatiya Sakshya Adhiniyam provisions apply to the production of evidence in a proceeding. The claimant is a litigant, and the arbiter is the court.
• The Right to Information Act 2005 applies to a request by any citizen, without any proceeding. The arbiter is the Public Information Officer, then the appellate authority, then the Information Commission.
• Section 8 of the Act contains the exemptions, several of which cover the same ground: security and strategic interests, foreign relations, information received in confidence from a foreign government, cabinet papers, and information whose disclosure would impede an investigation. Section 8(2) contains a public interest override, and section 24 excludes certain intelligence and security organisations from the Act. These are treated in [Exemptions from Disclosure].
• The important structural difference: under the Act, exemption is decided in the first instance by an officer and finally by an Information Commission, and the public interest override in section 8(2) is written into the statute. Under the evidence provisions the decision belongs to the court.

The practical consequence for a litigant is that a document refused as privileged in a suit may sometimes be obtainable on an information request, and the reverse, so the two routes should be considered together.

A worked example

A public interest petition alleges that a State awarded a mining lease to a company in breach of the rules. The petitioner seeks production of the departmental file containing the notings of officers, the legal opinion, and a note recording the Chief Minister's decision. The State claims privilege.

Step 1: which provision? The file is an unpublished official record, so section 129 of the Bharatiya Sakshya Adhiniyam 2023, formerly section 123 of the Indian Evidence Act 1872. If the claim is that an officer's confidential communication should not be disclosed, section 130, formerly section 124.

Step 2: is it an affair of State? Not everything in a government file is. Routine administration is not automatically an affair of State merely because it is on government paper. A note on the award of a mining lease is administration; a note on the deployment of forces is not.

Step 3: how is the claim made? By affidavit of the Minister or Secretary, who has read the file, stating the injury feared and, so far as possible, why.

Step 4: class or contents? If the State says "all notings on files are protected because officers would otherwise not write candidly", that is a class claim resting on the candour argument, which the courts have treated with increasing scepticism. If it says "this particular note discloses the identity of a person who informed against a mining operation and would endanger him", that is a contents claim and is much stronger.

Step 5: who decides? The court, which may inspect the file itself.

Step 6: the balance. The allegation is of a serious illegality in the disposal of a public resource, and the file is the only evidence of it. The public interest in the administration of justice is at its strongest.

Step 7: the other route. The petitioner, or anybody else, may also seek the file under the Right to Information Act 2005, where the State would have to bring itself within a section 8 exemption and face the public interest override in section 8(2).

Distinctions worth having straight

What it does NOT mean

It does not mean the Government's word is final. The claim is made by the executive; the decision belongs to the court.

It does not mean everything on a government file is privileged. The record must be unpublished, official and relate to affairs of State.

It does not mean privilege protects embarrassment. The interest protected is the public's, not the department's reputation.

It does not mean the old section numbers are still correct. Sections 123 and 124 of the Indian Evidence Act 1872 became sections 129 and 130 of the Bharatiya Sakshya Adhiniyam 2023 with effect from 1 July 2024.

Quick revision

1. Section 129 of the Bharatiya Sakshya Adhiniyam 2023, formerly section 123 of the Indian Evidence Act 1872: no evidence from unpublished official records relating to affairs of State without the permission of the head of the department.
2. Section 130, formerly section 124: no public officer compelled to disclose communications made in official confidence where he considers the public interest would suffer.
3. The Bharatiya Sakshya Adhiniyam 2023 replaced the Indian Evidence Act 1872 with effect from 1 July 2024. Give both numbers.
4. The privilege belongs to the public, so it cannot be waived for convenience, the court may take the point, and its scope is measured by injury to the public.
5. Procedure: an affidavit of the Minister or Secretary who has read the document, stating the injury feared. A bare assertion is defective. The court may inspect the document.
6. Class claims, resting on candour, are treated with scepticism; contents claims showing a specific injury are accepted.
7. The court balances the public interest in the administration of justice against the public interest in the working of government.
8. The Right to Information Act 2005 covers the same ground by a different route: section 8 exemptions, the section 8(2) public interest override, and the section 24 exclusions.

Test yourself

1. What is public interest privilege, and where is it now found? It is the rule that the Government may withhold documents from production in legal proceedings where disclosure would injure the public interest. It is contained in section 129 of the Bharatiya Sakshya Adhiniyam 2023, which provides that no one shall be permitted to give evidence derived from unpublished official records relating to any affairs of State except with the permission of the officer at the head of the department concerned, and section 130, which provides that no public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer. Those provisions replaced sections 123 and 124 of the Indian Evidence Act 1872 when the Bharatiya Sakshya Adhiniyam came into force on 1 July 2024, and the older case law is all decided under the former numbering.

2. Who decides whether a document is privileged? The court. The claim is made by the executive, ordinarily by affidavit of the Minister in charge or the Secretary of the department, who must have read the document and must state the injury apprehended so far as it can be stated without disclosing the protected matter. But the privilege exists for the benefit of the public and not of the Government, so the final decision whether disclosure would injure the public interest belongs to the court, which may inspect the document in private for that purpose. A bare assertion reciting the words of the section, without any application of mind to the particular document, is not a good claim.

3. Distinguish a class claim from a contents claim. A class claim asserts that documents of a particular class must be protected whatever their contents, usually on the argument that officers would not write frankly if their notes might be produced. A contents claim asserts that the contents of the particular document would injure the public interest, for example by disclosing defence dispositions or the identity of an informant. The judicial attitude has moved against class claims, the candour argument having been doubted, and towards requiring a demonstrated injury, so a contents claim properly made is far more likely to succeed.

4. Is everything contained in a government file an affair of State? No. Section 129 applies only where the record is unpublished, is an official record, and relates to affairs of State, and all three elements must be satisfied. Ordinary administrative correspondence does not become an affair of State merely because it is on government paper and is confidential in a general sense. If the section does not apply, no permission from the head of the department is required and the ordinary rules of production govern.

5. How does the Right to Information Act 2005 relate to public interest privilege? They cover overlapping ground by different routes. The evidence provisions govern the production of documents in a proceeding and the arbiter is the court. The Act governs a request by any citizen without any proceeding, and the arbiter is the Public Information Officer, then the appellate authority, then the Information Commission. Section 8 of the Act lists exemptions, several of which correspond to traditional grounds of privilege, including security and strategic interests, foreign relations, cabinet papers and information that would impede an investigation; section 8(2) contains a public interest override; and section 24 excludes certain intelligence and security organisations. A document refused as privileged in a suit may therefore sometimes be obtainable on an information request, and a litigant should consider both routes.

Against applying it: the Government holds its powers in trust for the public and cannot bargain them away. An officer's promise cannot make lawful what a statute forbids, and cannot bind the Government to a course that later proves contrary to the public interest. This is the fettering of discretion problem in [Grounds of Judicial Review: Failure to Exercise Discretion].

The law reconciles them by applying the doctrine, and then limiting it.

The rules, stated as propositions

1. Promissory estoppel applies to the Government. In its administrative, executive and business dealings the Government is bound by its promises in the same way as a private person, and the old rule that there is no estoppel against the Crown does not represent Indian law.

2. Consideration is not necessary, and neither is a contract. This matters because a government assurance will very often fail Article 299, and an estoppel does not depend on there being a valid contract.

3. There is no estoppel against a statute. This is the largest limit. The Government cannot be estopped from performing a statutory duty, and no promise can authorise what the law forbids or dispense with what the law requires. If an officer promises an exemption the statute does not permit, the promise is unenforceable however completely it was relied on.

4. There is no estoppel against the exercise of legislative power. Nobody can be promised that a law will not be changed.

5. There is no estoppel against the Constitution. A promise cannot make valid a contract void under Article 299, which is the point made in [Contractual Liability of the State].

6. The public interest may override it. The Government may resile from a promise where the public interest genuinely requires it, but it must place the material before the court and satisfy it that the public interest so required. A bare plea of public interest is not enough, and the burden is on the Government.

7. The promise must be within the officer's authority. A promise made by an officer with no power to make it does not bind, though the citizen's ignorance of the limits of that authority may be relevant to the equity.

The constitutional dimension

Facts. Maneka Gandhi v. Union of India, AIR 1978 SC 597, concerned a passport impounded under section 10(3)(c) of the Passports Act 1967 by an order reciting only that it was "in public interest", with no hearing and with reasons refused.

Held. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment: equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch. The principle of reasonableness pervades Article 14, and the procedure contemplated by Article 21 must satisfy the test of reasonableness, being right and just and fair and not arbitrary, fanciful or oppressive. Natural justice may be implied where the statute is silent, and there is no distinction between quasi-judicial and administrative functions for this purpose.

Why it matters here. In India the doctrine is reinforced by Article 14. A government which resiles from its own promise in one case, without explanation, while honouring it in others, is acting arbitrarily. So a citizen who cannot make out all the elements of promissory estoppel may still succeed on the constitutional ground.

The leading Indian decisions on promissory estoppel against the Government are identified in authorities/cases.json and have not yet been read in a session, so they are named there and are not worked here. A student should look up the sugar mill case on promissory estoppel and the case on the export promotion scheme, both of which are the standard authorities.

Waiver

Waiver appears in administrative law in two places, and they should be kept apart.

Waiver by the citizen. A person entitled to a procedural protection may lose it by not asserting it. A party who knows of a disqualifying interest and takes part without objecting may be held to have waived the objection: [The Rule Against Bias]. A person who knows of a defect in notice and argues the merits without complaint may be held to have waived it: [The Effect of a Failure of Natural Justice]. Waiver requires knowledge, so a person who did not know of the defect has not waived anything.

Waiver by the Government. Much more limited. The Government cannot waive a statutory requirement imposed in the public interest, because the requirement is not its to give up. It may waive a benefit conferred for its own protection, such as a contractual term in its favour.

Fundamental rights cannot be waived. A person cannot contract out of a fundamental right, because those rights are conferred in the public interest and not merely for the benefit of the individual.

A worked example

The State announces a scheme: any industry established in a notified backward taluka before 31 March will be exempt from State sales tax for five years. Prakash Sawant reads the notification, invests, and begins production in February.

Case 1. The State refuses the exemption, saying the scheme was only a policy announcement and not a contract. Promissory estoppel applies. There was a clear promise, made to be acted on, Prakash altered his position by investing, and it would be inequitable to allow the State to resile. No contract and no consideration are needed.

Case 2. The State says the assurance did not comply with Article 299. That is no answer. Estoppel does not depend on a valid contract, which is precisely why the doctrine matters in this field.

Case 3. It turns out that the Sales Tax Act permits exemptions only by notification under a particular section, and no such notification was issued. Now the State succeeds. There is no estoppel against a statute, and the promise cannot compel the Government to do what the Act does not authorise. Prakash's remedy, if any, lies elsewhere.

Case 4. The State withdraws the scheme for future units and pleads public interest, filing material showing the exemption was causing a revenue loss disproportionate to the industrial development achieved. The withdrawal is prospective, the material is before the court, and the plea is likely to succeed for future units, though Prakash, who has already acted, is in a stronger position.

Case 5. The State withdraws the exemption for Prakash alone and continues it for the four other units in the taluka. This is not a public interest departure but discrimination, and it is arbitrary under Article 14 on the reasoning of Maneka Gandhi v. Union of India, AIR 1978 SC 597.

Case 6. Prakash read the notification but had already built his factory before it was issued. The element of reliance fails. He did not alter his position on the faith of the promise, and estoppel does not arise, though he might argue legitimate expectation of consistent treatment.

Distinctions worth having straight

What it does NOT mean

It does not mean the Government is bound by every statement an official makes. The promise must be clear, must be within the officer's authority, and must have been acted on.

It does not mean estoppel can override the law. There is no estoppel against a statute, against legislation, or against the Constitution.

It does not mean the public interest is a magic word. The Government must place the material before the court.

It does not mean a citizen can waive a fundamental right. He cannot.

Quick revision

1. Promissory estoppel: a clear and unequivocal promise, intended to be acted on, actually acted on with an alteration of position, where it would be inequitable to allow resiling. No consideration is needed.
2. It applies to the Government in its administrative and executive dealings; the old rule that there is no estoppel against the Crown is not Indian law.
3. Limits: no estoppel against a statute; none against the exercise of legislative power; none against the Constitution, so it cannot validate a contract void under Article 299; and the public interest may override it, but the Government must prove it with material.
4. The promise must be within the authority of the officer who made it.
5. Article 14 reinforces the doctrine: an arbitrary departure from an assurance is unequal treatment, on the reasoning of Maneka Gandhi v. Union of India, AIR 1978 SC 597.
6. Waiver by a citizen requires knowledge of the right; waiver by the Government of a statutory requirement imposed in the public interest is not possible; fundamental rights cannot be waived.
7. Distinguish estoppel, which needs reliance and yields the promise, from legitimate expectation, which needs none and yields a hearing.

Test yourself

1. Does the doctrine of promissory estoppel apply against the Government in India? Yes, in its administrative, executive and business dealings. Where the Government makes a clear and unequivocal promise, intending it to be acted upon, and a citizen acts on it and alters his position, the Government may be held to the promise even in the absence of consideration and even where no valid contract exists. The old English rule that there is no estoppel against the Crown does not represent Indian law, and the doctrine is reinforced by Article 14, since a State which resiles arbitrarily from its own assurance is acting unequally, and Maneka Gandhi v. Union of India, AIR 1978 SC 597, holds that Article 14 strikes at arbitrariness in State action and that equality and arbitrariness are sworn enemies.

2. What are the limits of promissory estoppel against the Government? There is no estoppel against a statute, so the Government cannot be compelled by a promise to do what the law does not permit or to refrain from performing a statutory duty. There is no estoppel against the exercise of legislative power, so nobody can be promised that the law will not be changed. There is no estoppel against the Constitution, so a promise cannot validate a contract void for non-compliance with Article 299. The promise must be within the authority of the officer who made it. And the Government may resile where the public interest genuinely requires it, though it must place the material before the court and satisfy it that this was so; a bare plea of public interest is not enough and the burden lies on the Government.

3. Distinguish promissory estoppel from legitimate expectation. Promissory estoppel requires a clear and unequivocal promise and requires the promisee to have altered his position in reliance on it, and its ordinary effect is that the promise is enforced. Legitimate expectation may arise either from a promise or from a settled and consistent past practice, does not require proof of reliance, and ordinarily entitles the person only to be heard and to receive a rational and public interest reason for any departure, rather than to the benefit itself. Neither can operate against a statute.

4. What is waiver, and can the Government waive a statutory requirement? Waiver is the intentional relinquishment of a known right, so it requires knowledge of the right given up. A citizen may waive a procedural protection, for example by taking part in a proceeding with knowledge of a disqualifying interest or of a defect in notice, and will then not be heard to complain later. The Government's position is narrower: it cannot waive a statutory requirement imposed in the public interest, since the requirement is not its own to surrender, though it may waive a term or benefit inserted purely for its own protection. Fundamental rights cannot be waived at all, because they are conferred in the public interest and not merely for the benefit of the individual.

5. The Government promises a tax exemption which the taxing statute does not authorise, and a manufacturer sets up a factory in reliance. Advise. The manufacturer cannot enforce the promise. All the elements of promissory estoppel may be present, a clear promise, an intention that it be acted on, actual reliance and an alteration of position, but the doctrine cannot operate against a statute. The Government cannot be compelled to grant an exemption the Act does not permit, since that would require the executive to act contrary to law, and no estoppel can produce that result. If the exemption was within the Act but the required notification was simply not issued, the position is different and the manufacturer's case is much stronger. He may also consider whether a departure from a published scheme in his case alone is arbitrary under Article 14, and whether any restitutionary claim arises.