Administrative Process and Judicial Control Notes | LL.M. Semester 3 | Mumbai University | munotes

In one line

Administrative law is the law that controls the government when it is not making laws and not deciding court cases, but doing everything else.

In the wording a student can write in an exam: administrative law is the branch of public law which determines the organisation, powers and duties of administrative authorities, prescribes the procedure by which those powers are exercised, and provides the remedies available to a person aggrieved by their exercise. It is concerned with the legality of administrative action, not with its wisdom.

Why the law has this at all

A modern State does far more than keep order. It runs railways, licenses shops, fixes prices, distributes ration cards, awards contracts, admits students, grants pensions, seizes adulterated food, orders demolitions and disqualifies drivers. Every one of those acts touches somebody, and almost all of them are done by officials nobody elected, under powers a legislature handed over in a sentence.

Two things follow. First, the officials need power, because a State that had to pass an Act every time it wanted to fix the price of sugar would stop working by Wednesday. Second, the power needs a control, because a discretion that answers to nobody is indistinguishable from arbitrariness. Administrative law is the second of those two: it is the body of rules by which courts, and to a lesser extent legislatures, keep the first inside limits.

The words in the definition, taken apart

Public law. Law that governs the relation between the individual and the State, as against private law, which governs the relation between two individuals. A contract between two traders is private law. A licence granted by a municipal commissioner is public law, and it is public law even though the licence looks like a permission one private person might give another.

Administrative authorities. Not only ministers and civil servants. The expression covers statutory corporations, tribunals, regulatory commissions, universities, municipal bodies, boards of examination, and anybody else exercising a power conferred by law for a public purpose. Who exactly counts is the subject of the chapter on [The State under Article 12, and Who Can Be Sued in a Writ].

Organisation, powers and duties. What the authority is, what it may do, and what it must do. A power is something an authority may exercise; a duty is something it has no choice about. The difference decides which writ a citizen asks for, because mandamus commands the performance of a duty and cannot command the exercise of a power in a particular way.

The procedure by which those powers are exercised. The hearing, the notice, the enquiry, the reasons. This half of the subject is Module III of MU's syllabus and it is where most litigation is actually won.

In one line

The administrative process is everything the administration actually does with the powers a statute gives it, and there are only four kinds of it.

In the wording a student can write in an exam: the administrative process is the totality of the methods by which administrative authorities carry out the tasks entrusted to them, comprising rule-making, adjudication, the exercise of discretion and ministerial action. Judicial control, which is the other half of MU's paper title, operates on each of the four differently.

Why this chapter comes before any control

MU's paper is called Administrative Process and Judicial Control, in that order, and the order is not accidental. A student who learns the grounds of review without ever seeing what is being reviewed produces answers in which certiorari, mandamus and natural justice float free of any administration. The four kinds of action below decide, in almost every real case, which ground is available and which writ lies.

The four kinds of administrative action

1. Rule-making, or administrative legislation. The authority lays down a general rule for the future, binding on everybody in a class. The Reserve Bank fixes a rate; a ministry makes rules under an Act; a municipal body makes a bye-law. This is delegated legislation and it is Module IV of the syllabus.

2. Adjudication, or administrative adjudication. The authority decides a dispute or determines a right in a particular case, on evidence, after hearing the parties. A rent controller fixes a standard rent; a tribunal decides a service dispute; a customs officer confiscates goods. This is what older writers called the quasi-judicial function.

3. Discretionary action. The authority chooses between courses that are all lawful, on grounds the statute leaves largely to it. A licence is granted or refused; a permit is renewed; an officer is transferred; a scheme is approved. Discretion is Module II of the syllabus, because almost every ground of review is a control on it.

4. Ministerial action. The authority has no choice at all: the statute tells it what to do and it does it. Issuing a certificate on production of the prescribed documents; entering a name in a register; paying a pension that has been sanctioned. Nothing is decided, so nothing needs a hearing, but a refusal can be met with mandamus.

A single decision often passes through several of these. A scheme of road nationalisation is rule-making in substance, the hearing of objections to it is adjudication, and the choice of which routes to take over is discretion.

Why the classification matters, in four consequences

It decides whether a hearing is owed. Legislative action attracts no hearing, which is why a price fixation order can be made without hearing the producers: Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277.

In one line

Administrative law grew because the State stopped being a policeman and became a provider, and the courts had to invent controls fast enough to keep up.

In the wording a student can write in an exam: the growth of administrative law is a consequence of the transformation of the laissez faire State into the modern welfare and regulatory State, which required the conferment of wide legislative, adjudicatory and discretionary powers on the administration, and which in turn made judicial control of those powers indispensable.

The problem the growth solved

In the nineteenth century the accepted function of the State was narrow: defence, order, tax, and the enforcement of contracts. Writers called it the police State, meaning a State whose business was policing rather than providing. A government of that kind needs very little administrative law, because it does very little administering.

Two things ended it. The first was industrialisation, which produced factories, railways, slums, sanitation, adulterated food and employment on terms nobody could bargain over. The second was the political answer to it: universal suffrage produced electorates who wanted the State to act. By the middle of the twentieth century the State had taken on education, health, housing, minimum wages, price control, industrial licensing, social insurance and the management of whole industries.

That State cannot work through Acts of Parliament alone. Parliament has neither the time to write the detail nor the expertise to know it, and it certainly cannot sit continuously to adjust a price. So it does three things: it delegates the making of rules, it creates tribunals to decide the disputes the new schemes throw up, and it confers wide discretion on officers. Each of the three is a transfer of power to people the electorate did not choose, and each of the three is a reason administrative law exists.

Five specific causes, in the form an examiner expects

1. The change in the philosophy of the State. From laissez faire to a welfare State, and in India to a State directed by Part IV of the Constitution to secure a social order.

2. The inadequacy of the legislature. Parliament has limited time, limited technical knowledge and no capacity for continuous adjustment. So it lays down policy and hands over the rest.

3. The inadequacy of the ordinary courts. Civil courts are slow, expensive, bound by elaborate procedure and staffed by generalists. A dispute about compensation for a railway accident, a tax assessment or a service seniority list is better decided by a specialised body, quickly and cheaply.

4. The scope for experiment. A rule can be amended when it fails. An Act cannot, not quickly.

5. Emergency and crisis. War, famine, epidemic and economic emergency all produce a need to act before the ordinary machinery can be set in motion, and the powers taken in a crisis rarely go back entirely.

In one line

An agency is any body that exercises public power, and India runs its administration through six different kinds of them.

In the wording a student can write in an exam: the agencies of the administrative process are the institutions through which the State discharges its administrative functions, comprising the government departments, statutory authorities and public corporations, government companies, local self-government bodies, tribunals, and the independent regulatory commissions. Judicial control reaches each of them, but by different routes and to different depths.

Why MU prints "Concepts and Agencies" as one topic

Because the concepts are useless without the institutions. Delegated legislation is an abstraction until you know that a Municipal Corporation makes bye-laws and a Regulatory Commission makes regulations. Natural justice is an abstraction until you know that a Board of Examinations cancels a result and a Disciplinary Authority dismisses a clerk. The topic is one topic because the process is exercised by somebody.

The six kinds

1. The government department. The oldest form and still the largest. A ministry or department of a State Government, headed politically by a minister and administratively by a secretary, acting in the name of the President or Governor under Articles 77 and 166. Its officers exercise statutory powers in their own names where a statute says so, and the department itself has no separate legal personality: the suit or the writ goes against the Union or the State.

2. The statutory authority. A body created by a statute for a defined purpose, with a legal personality of its own and powers given directly by the Act. Examples are a State Electricity Board, a Port Trust, a Housing Board, a University. Because the power comes straight from the statute, its acts are reviewable in exactly the way a department's are, and the regulations it makes have the force of law.

3. The public corporation. A commercial or industrial undertaking incorporated by a special Act, such as the Life Insurance Corporation or the Oil and Natural Gas Commission, or by registration under the Companies Act with the Government holding the shares. This is where the difficulty about Article 12 begins, and it is worked out in [The State under Article 12, and Who Can Be Sued in a Writ].

4. Local self-government. Municipal corporations, municipal councils, zilla parishads and panchayats, now with a constitutional foundation in Parts IX and IXA. They legislate by bye-law, adjudicate through their officers, and are among the commonest respondents in a writ petition in Maharashtra.

5. Tribunals. Bodies created to adjudicate a class of disputes outside the ordinary courts, either under Articles 323A and 323B or under an ordinary statute. Dealt with in [Administrative Tribunals: Articles 323A and 323B].

In one line

These are the three bodies a citizen actually sues, and each of them is created in a different way, which is why each is controlled differently.

In the wording a student can write in an exam: the executive acts through departments which have no separate legal personality and whose acts are the acts of the Union or the State; statutory authorities are corporate bodies created by an Act which derive their powers from that Act; and public corporations are commercial undertakings created either by a special statute or by incorporation under the Companies Act with government shareholding.

Why the law has this at all

A citizen with a grievance has to name a respondent. That is not a technicality: the correct respondent decides whether the petition is maintainable, whether the Government has to be given notice under section 80 of the Code of Civil Procedure before a suit, and whether the body can be told that its own regulations bind it. This chapter is about getting that right.

The executive

How it acts. Article 53 vests the executive power of the Union in the President and Article 154 vests that of a State in the Governor, in each case to be exercised directly or through officers subordinate to them. Article 77 and Article 166 provide that all executive action shall be expressed to be taken in the name of the President or the Governor, and authorise rules for the more convenient transaction of business, which are the Rules of Business under which files actually move.

What follows for a litigant. A department is not a legal person. The petition and the suit run against the Union of India or the State of Maharashtra, through the department, and Article 300 provides that the Government may sue and be sued in its own name.

What follows for review. An order expressed in the name of the Governor is presumed to have been validly made, and a person alleging otherwise has to displace the presumption. But the Rules of Business allocate functions, and an order made by an officer to whom the function was never allocated is made without authority.

Statutory authorities

How they are created. By an Act that says a body corporate is constituted, gives it perpetual succession and a common seal, and lists its powers. The University of Mumbai, the Maharashtra Housing and Area Development Authority, a Municipal Corporation and a State Electricity Board are all of this kind.

Why they matter to administrative law. Three reasons. Their powers are limited by the Act, so the doctrine of ultra vires applies directly. The regulations they frame under the Act have the force of law, so an act contrary to a regulation is void and not merely a breach of contract, which is what Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331, decided.

In one line

A writ for breach of a fundamental right lies only against the State, and Article 12 tells you what the State is.

In the wording a student can write in an exam: Article 12 provides that in Part III, unless the context otherwise requires, "the State" includes the Government and Parliament of India, the Government and the Legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India. The whole of Indian administrative law about public corporations is an argument about the words "other authorities".

The provision itself

Article 12 reads: "In this Part, unless the context otherwise requires, 'the State' includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India."

Four things follow from the words. "Includes" means the definition is not exhaustive. "In this Part" means it is a definition for Part III, the fundamental rights, and it is extended to Part IV by Article 36. "Local authorities" covers municipalities, panchayats and boards. "Other authorities" is the open expression, and it has been construed four times in sixty years.

Why the question matters

Because everything hangs on it. If a body is the State, the fundamental rights bind it directly, an aggrieved person can petition under Article 32, and Articles 14, 16, 19 and 21 supply the grounds of review. If it is not, none of that follows, and the person is left to a contract, a statute, or Article 226 on the narrower footing of a public duty.

The four steps of the Indian law

Step one: a body created by a statute is the State. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331, worked in [The Executive, Statutory Authorities and Public Corporations], held that the Oil and Natural Gas Commission, the Life Insurance Corporation and the Industrial Finance Corporation are authorities within Article 12 and that their regulations have the force of law.

Step two: the instrumentality test. Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628.

Facts. The Airport Authority invited tenders for a restaurant and snack bars at Bombay airport, restricting the invitation to registered second class hoteliers with at least five years of experience. Of six tenders only one was complete and it was accepted, although that tenderer did not answer the description in the notice at all. An unsuccessful person challenged the acceptance.

Held. The Authority is an instrumentality or agency of the Government and so an authority under Article 12. Where the Government or its instrumentality lays down a standard for entering into a contract it is not free to depart from it at pleasure, and accepting a tender that does not satisfy the declared eligibility is arbitrary and offends Article 14. The Court listed the indicia of an instrumentality: the entire share capital held by the Government; financial assistance from the State meeting almost the whole of the expenditure; a monopoly status conferred or protected by the State; deep and pervasive State control; functions of public importance closely related to governmental functions; and a department of Government transferred to the corporation.

In one line

A regulator is an agency that writes the rules for an industry, decides the disputes under them and enforces them, all at once, and that is exactly why it is a problem for administrative law.

In the wording a student can write in an exam: an independent regulatory agency is a statutory body created to regulate a defined economic sector, combining subordinate legislative, adjudicatory and executive functions, and insulated by its constituting Act from ordinary departmental control.

Why the law has this at all

Until 1991 the Indian State regulated an industry mainly by owning it. Liberalisation reversed that: private capital was allowed into telecommunications, electricity, insurance, ports and airports, and the State's role changed from owner to referee. A referee inside a ministry is not credible, because the ministry also owns the incumbent operator. So Parliament created bodies at one remove: the Telecom Regulatory Authority of India in 1997, the Securities and Exchange Board of India given statutory teeth in 1992, the Central and State Electricity Regulatory Commissions in 1998 and 2003, the Insurance Regulatory and Development Authority in 1999, the Competition Commission in 2002.

MU's syllabus was framed in 2016-17 and does not name any of them. They belong here because the printed topic is "Concepts and Agencies", and because the regulator is where a modern examiner's illustration of delegated legislation and of judicial review will come from.

What makes a regulator different

It legislates. Its regulations are subordinate legislation, made under a section of its Act, and they bind an entire industry.

It adjudicates. It decides disputes between licensees, between a licensee and a consumer, and between a licensee and itself.

It enforces. It investigates, penalises and revokes licences.

It is insulated. Members are appointed for fixed terms and can be removed only on stated grounds, and the Government's power to give directions is usually confined to questions of policy.

It is expert. The composition is deliberately technical, which is why courts review its economic judgments lightly.

How judicial control reaches a regulator

Through all three doors of this book.

As a legislator. Its regulations are subordinate legislation and are tested for being ultra vires the parent Act, for unconstitutionality and for manifest arbitrariness, which is Module IV.

As an adjudicator. Its orders in disputes are tested for jurisdiction, for natural justice and on the ordinary grounds, which are Modules II and III.

As an administrator. Its licensing and enforcement decisions are tested for relevance, purpose, mala fides and proportionality.

The neatest single illustration is Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336, where a TRAI regulation compelling operators to compensate consumers for dropped calls was struck down both as beyond the parent Act and as manifestly arbitrary under Article 14. It is worked in full in [Unreasonableness and Manifest Arbitrariness in Subordinate Legislation]; what it settles for this chapter is that expertise is a reason for restraint and never a bar to review.

In one line

Articles 323A and 323B are the Constitution's permission to take whole classes of disputes away from the courts and give them to tribunals.

In the wording a student can write in an exam: Articles 323A and 323B, inserted by the Constitution (Forty-second Amendment) Act 1976, empower Parliament and, in the case of Article 323B, the State legislatures as well, to provide by law for the adjudication by administrative tribunals of disputes in specified fields, and originally permitted the exclusion of the jurisdiction of all courts except the Supreme Court under Article 136.

Why the law has this at all

Two pressures produced them. The first was the sheer volume of service litigation: by the 1970s a very large part of the writ jurisdiction of the High Courts was taken up with disputes about seniority, promotion, transfer and pension. The second was the belief, common at the time, that a specialised body could decide such matters faster and more cheaply than a generalist court.

The Swaran Singh Committee recommended tribunals, and the Forty-second Amendment inserted a new Part XIVA with the two articles.

The provisions

Article 323A authorises Parliament alone to provide by law for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State, or of any local or other authority or government-controlled corporation. Clause (2) permits such a law to specify the jurisdiction of the tribunals, to provide their procedure, and, by clause (2)(d) as originally enacted, to exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under Article 136.

Article 323B authorises the appropriate legislature, which may be Parliament or a State legislature, to provide for tribunals for the adjudication of disputes in the matters listed in clause (2): levy and collection of tax; foreign exchange, import and export; industrial and labour disputes; land reforms; ceiling on urban property; elections to Parliament or a State legislature; production, procurement, supply and distribution of foodstuffs and essential goods; and offences and ancillary matters in relation to those subjects. Clause (3)(d) contained a similar exclusion of the jurisdiction of courts.

The asymmetry a student must notice

The two articles are not the same and MU's syllabus label "Concepts and Agencies" gives no hint of it.

In one line

This is the Act that turned Article 323A into a working institution, and its section 28 is the ouster clause the Supreme Court eventually struck down.

In the wording a student can write in an exam: the Administrative Tribunals Act 1985 establishes the Central Administrative Tribunal and State Administrative Tribunals for the adjudication of disputes relating to recruitment and conditions of service of persons appointed to public services, confers on them the jurisdiction previously exercisable by the courts in those matters, and prescribes a procedure freed from the Code of Civil Procedure.

The sections a student must know

Section 14, the jurisdiction of the Central Administrative Tribunal. From an appointed day, the Tribunal exercises all the jurisdiction, powers and authority exercisable immediately before that day by all courts, except the Supreme Court, in relation to recruitment and matters concerning recruitment to an All India Service or to a civil service of the Union or a civil post under the Union, and all service matters concerning such persons and members of the defence civilian services.

Section 15, the jurisdiction of a State Administrative Tribunal. The same jurisdiction in relation to a civil service of the State or a civil post under the State, and in relation to local and other authorities within the State.

Section 17, the power to punish for contempt. The Tribunal has the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has, which is what makes its orders enforceable.

Section 19, applications to the Tribunal. A person aggrieved by an order pertaining to a service matter may make an application to the Tribunal, and the Tribunal shall not ordinarily admit it unless the applicant has availed of all the remedies available under the relevant service rules.

Section 20, the exhaustion of departmental remedies. The Tribunal is not to admit an application unless the departmental remedies have been exhausted, subject to the exception where the appeal or representation has not been decided within six months.

Section 21, limitation. An application must ordinarily be made within one year of the final order, with provision for the period to run from the decision of the departmental appeal, and section 21(3) allows the Tribunal to admit an application after the period on sufficient cause.

Section 22, the procedure and powers. The Tribunal is not bound by the Code of Civil Procedure but is guided by the principles of natural justice, has power to regulate its own procedure, and has the powers of a civil court in respect of summoning witnesses, discovery, evidence on affidavit and the review of its own decisions.

Section 27, the finality of orders. Subject to the provisions about appeals, the order of a Tribunal disposing of an application is final and shall not be called in question in any court, and the Tribunal shall have all powers to enforce it.

In one line

For fifty years an Indian court's first question was whether the act complained of was quasi-judicial, because everything else followed from the answer.

In the wording a student can write in an exam: administrative action was traditionally classified into legislative, quasi-judicial and purely administrative action; the principles of natural justice and the writs of certiorari and prohibition were confined to quasi-judicial action, so the classification decided both the procedure the authority owed and the remedy the citizen had.

Why this chapter comes before Kraipak

Because a reader who has never seen the classification cannot see what Kraipak destroyed. MU sets the question as "Whether Quasi-judicial and administrative actions are same or different", which is a question about a distinction, and an answer that has never stated the distinction is worth very little.

The three classes

Legislative action. Laying down a general rule for the future, binding on a class. No lis, no parties, no evidence. No hearing owed, and no certiorari.

Quasi-judicial action. An authority which is not a court determining a question affecting rights, on evidence, between competing contentions. The older definition required three elements: a lis or dispute between two or more parties, the presentation of the case by them, and a decision on the merits by the application of law to facts. Natural justice applied, and certiorari and prohibition lay.

Purely administrative action. Everything else: action taken on grounds of policy, expediency or convenience, where the authority is not required to decide a dispute but to do or refrain from doing something. No natural justice, no certiorari.

The old test: the superadded duty to act judicially

The phrase came from an English judgment of 1924 which said that certiorari lies where a body has legal authority to determine questions affecting the rights of subjects and has the duty to act judicially. Indian courts read the last words as a separate requirement: it was not enough that the decision affected rights; there had to be something in the statute imposing a duty to act judicially in addition. That is the "superadded duty" doctrine, and it is what kept most administrative action outside natural justice altogether.

The case that shows the doctrine at work

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 do so, to requisition any land for a public purpose. A flat in Bombay was requisitioned shortly after a refugee from Sind took an assignment of the tenancy and went into possession. He sought certiorari to quash the requisition.

Held. Certiorari lies wherever 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 which is administrative or ministerial in nature. On the construction of section 3, the existence of a public purpose was not a collateral fact to be objectively established but part of the subjective opinion the Government was authorised to form, so the requisition was an administrative act and certiorari did not lie.

In one line

Kraipak is the case in which the Supreme Court stopped asking what kind of act it was and started asking whether the person affected had been treated fairly.

In the wording a student can write in an exam: A.K. Kraipak v. Union of India held that the rules of natural justice apply to administrative proceedings as well as to quasi-judicial proceedings, because the line between the two is not easy to draw and an unjust administrative decision may have the more far-reaching effect; the question in every case is whether the observance of the particular rule was necessary for a just decision on those facts.

MU's own question

The University has set this as a whole twenty-five mark question: whether quasi-judicial and administrative actions are the same or different, to be justified in the light of the Kraipak case. The answer has three parts: state the old distinction, state what Kraipak did to it, and state what is left of it. The old distinction is in [Classifying Administrative Action: Legislative, Quasi-Judicial and Administrative]; the rest is here.

The case

A.K. Kraipak v. Union of India, AIR 1970 SC 150.

Facts. A Special Selection Board was constituted under the Indian Forest Service (Initial Recruitment) Regulations 1966 to select officers of the Jammu and Kashmir forest department for the Indian Forest Service. The Regulations required the Chief Conservator of Forests of the State to sit on the Board. The officer holding that post as Acting Chief Conservator was himself a candidate, and he had been appointed by superseding another Conservator whose appeal against the supersession was still pending. He withdrew when his own name was considered, but sat and took part when the names of his rivals were considered and when the final list was arranged in order of preference. His name came first; three Conservators, including the officer he had superseded, were left out. The list went to the Ministry of Home Affairs and then to the Union Public Service Commission, which examined the records afresh, and the Government of India notified it. The excluded officers petitioned under Article 32.

Held. The selection was quashed. The rules of natural justice operate in areas not covered by any validly made law; they do not supplant the law of the land but supplement it, and their aim is to secure justice or to prevent a miscarriage of justice. There is no reason why they should not apply to administrative proceedings as well, especially when it is not easy to draw the line demarcating administrative enquiries from quasi-judicial ones, and an unjust decision in an administrative enquiry may have a more far-reaching effect than a decision in a quasi-judicial enquiry. Whenever it is complained that a principle of natural justice has been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case. The rule that enquiries must be held in good faith and without bias, and not arbitrarily or unreasonably, is now among the principles of natural justice. That the disqualified member withdrew when his own name was considered did not cure the defect, because his participation when his rivals were considered was itself fatal, and the later scrutiny by the Union Public Service Commission did not purge the taint, because the Commission acted on a list the Board had prepared.

In one line

Droit administratif is French administrative law, and its distinguishing feature is that disputes between the citizen and the administration go to a separate system of courts staffed by administrators, not to the ordinary courts.

In the wording a student can write in an exam: droit administratif is the body of rules, developed by the French administrative courts and not by the legislature, which determines the organisation, powers and duties of public administration and the rights and obligations of the citizen against it, and which is applied by a separate hierarchy of administrative tribunals headed by the Conseil d'Etat.

Why MU asks about it on six papers out of eight

Because the paper is comparative by design, and because the comparison exposes what a common law system takes for granted. An English or Indian lawyer assumes that the citizen and the State go to the same court and are judged by the same law. The French assume the opposite, and they have assumed it since 1790. Which system protects the citizen better is a real question, and MU has asked it in one form or another on almost every paper it has set.

Where it came from

The French Revolution inherited a memory of the parlements, the old judicial bodies which had obstructed royal reform. The revolutionaries concluded that judges must be kept out of administration altogether. A law of 16 and 24 August 1790 forbade the ordinary courts to disturb in any manner the operations of administrative bodies, and it is still the foundation of the system.

That prohibition created a gap: if the ordinary courts could not judge the administration, who could? The answer was to create a judge inside the administration. The Conseil d'Etat was established in 1799 to advise the head of State and to examine complaints against officials. For most of the nineteenth century it only advised, and the minister decided, a stage known as justice retenue, justice retained. In 1872 it was given power to decide in its own name, which is justice deleguee, delegated justice, and from that moment France had a real administrative court.

The three characteristics Dicey identified

An answer should state them, because they are what the comparison is usually built on.

One. The relation of the government and its officials to private citizens is governed by a body of rules different from those which apply between one private citizen and another.

Two. Those rules are administered by a separate set of tribunals, so that officials are to a great extent exempt from the jurisdiction of the ordinary courts.

Three. The system rests on a strict separation of administrative and judicial authority, and the boundary between them is itself policed by a special body, the Tribunal des Conflits.

In one line

The Conseil d'Etat is both the Government's legal adviser and the highest administrative court in France, and it does the two jobs in different rooms.

In the wording a student can write in an exam: the Conseil d'Etat, created in 1799 and given the power to decide in its own name in 1872, is the supreme administrative court of France and simultaneously the standing legal adviser to the Government; it sits at the head of a three-tier administrative jurisdiction consisting of the tribunaux administratifs, the cours administratives d'appel and itself.

Why a chapter of its own

Because an answer to MU's comparison question which says only that France has separate courts is worth about a third of the marks. The comparison turns on how those courts are staffed, what action a citizen brings, what grounds are available and what the court can do, and all four are facts about the Conseil d'Etat.

Its two faces

The advisory face. The administrative sections examine every draft ordinance and decree, and every government bill before it goes to Parliament. The Government must consult it on those, and although it is not bound by the advice it very rarely disregards it. This is why French administrative law is preventive as well as curative: a large part of its work is stopping bad instruments before they are made.

The judicial face. The section du contentieux, the litigation section, decides cases. It hears appeals from the administrative courts of appeal, and it has first instance jurisdiction over the most important matters, including challenges to decrees.

The obvious objection is that the same body advises on an instrument and then judges it. The French answer is a strict internal separation: a member who has sat on the advisory side in relation to a text does not sit on it judicially, a rule that was tightened after criticism from the European Court of Human Rights.

Its structure

Tribunaux administratifs. The courts of first instance, spread across the country.

Cours administratives d'appel. Created in 1987 to take the weight of appeals off the Conseil d'Etat.

Conseil d'Etat. The court of last resort and, for a limited class of cases, of first and last resort.

Tribunal des Conflits. Not part of the hierarchy but essential to it: a body composed equally of members of the Conseil d'Etat and of the Cour de cassation, which decides whether a dispute belongs to the ordinary courts or to the administrative courts. A common law system has no equivalent because it has no boundary to police.

Who its members are

They are not career judges. They are recruited largely from the elite administrative schools, they move in and out of government service during their careers, and they return. To an English lawyer that looks like the administration judging itself. To a French lawyer it is the reason the court understands the administration well enough to control it, and the reason its decisions are obeyed.

In one line

Dicey said England had the rule of law and France had droit administratif, and that the two were opposites; he was wrong about France, and the mistake shaped a century of English thinking.

In the wording a student can write in an exam: Dicey's conception of the rule of law had three limbs, the absence of arbitrary power, equality before the ordinary law administered by the ordinary courts, and a constitution which is the result of the ordinary law of the land; he treated droit administratif as the negation of the second limb, and later modified his view.

Why this chapter is here

Because MU asks how judicial control in common law countries differs from the French system, and the honest answer begins with the reason English lawyers thought the two systems were opposed. That reason is Dicey. This chapter also does the second job of defining the rule of law, which the rest of the book uses without further explanation.

The three limbs of Dicey's rule of law

One, the supremacy of regular law as opposed to arbitrary power. No man is punishable except for a distinct breach of law established in the ordinary courts. Wide discretionary authority in the government is inconsistent with the rule of law.

Two, equality before the law. Every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. There is no special law and no special court for officials.

Three, the constitution is the result of the ordinary law. The general principles of the English constitution, such as the right to personal liberty, are the result of judicial decisions in particular cases brought by private persons, rather than of a written guarantee.

What Dicey said about droit administratif

He said it rested on two ideas foreign to English law: that the government and its officials have rights against private citizens which are determined by a special body of rules, and that the ordinary courts have no jurisdiction over disputes between officials and citizens. He treated a system of that kind as a system of official privilege and therefore as the opposite of the rule of law.

Why he was wrong

He mistook a separate court for a partial court. The Conseil d'Etat is not a department; it decides against the administration constantly, and its members' careers do not depend on the ministries they judge.

He mistook special rules for lenient rules. French liability law is in important respects harder on the State than English law then was, because it developed without sovereign immunity and recognised liability without fault.

He misread his own system. English law was already full of statutory discretions and special tribunals when he wrote, and the Crown then enjoyed immunities a French administration did not.

In one line

The common law controls the administration through the ordinary courts using ordinary law; France controls it through separate courts using special law; both control it, and they trade different advantages.

In the wording a student can write in an exam: judicial control over the administrative process in common law countries is exercised by the ordinary courts, on the basis of the same law that governs private persons, through the prerogative writs and their statutory successors; in France it is exercised by a separate hierarchy of administrative courts headed by the Conseil d'Etat, applying a distinct body of judge-made administrative law developed for the purpose.

MU's question

The University has set the comparison twice as a whole question, once as how judicial control in common law countries differs from the French system, and once as an evaluation of the relevance of the French system of administrative adjudication in comparison with the common law model. What follows is the comparison, and then the evaluation, because the second question asks for a judgment and not only a table.

The comparison, row by row

The four differences that carry the marks

One, the separation of jurisdictions. This is the difference from which all the others follow. France separated administration from justice in 1790 and has policed the boundary through the Tribunal des Conflits ever since. The common law never separated them, which is why an English judge who decides a contract in the morning quashes a licensing decision in the afternoon.

In one line

Judicial review is a court checking that a public body kept inside the law, and it is not a court deciding whether the body was right.

In the wording a student can write in an exam: judicial review is the power of a superior court to examine the legality of the action of the legislature, the executive and other public authorities, and to declare it void or to quash it where it exceeds the limits set by the Constitution or by the law; it is concerned with the decision-making process and not with the merits of the decision.

Why the law has this at all

Every public power in a constitutional State comes from somewhere: from the Constitution, or from an Act, or from a rule. A power that comes from somewhere has a boundary, because the instrument that gave it also described it. Judicial review is the mechanism by which the boundary is enforced, and without it the boundary would be a statement of good intentions.

That is why judicial review is not a courtesy the courts extend. It follows from the existence of a written constitution. If Article 13 says that a law inconsistent with a fundamental right is void, somebody has to decide when it is inconsistent, and the somebody is a court.

The single most valuable distinction in this book

Review is about legality. Appeal is about correctness.

An appellate court asks: was this decision right? It can reconsider the evidence, form its own view of the facts, and substitute its own conclusion. A court on review asks: was this decision lawfully reached? It looks at the authority's power, its procedure and its reasoning, and if the decision was lawfully reached it leaves it alone however much it disagrees.

Tata Cellular v. Union of India, AIR 1996 SC 11, states it as well as any case.

Facts. The Department of Telecommunications invited tenders to license cellular mobile telephone service in four metropolitan cities. The process ran through a Tender Evaluation Committee and a Telecom Commission. Unsuccessful bidders challenged the award, complaining among other things that the Director General, whose son was connected with a bidder, had taken part.

Held. The award was upheld and the limits of review were set out. The modern trend points to judicial restraint in administrative action. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. It does not have the expertise to correct an administrative decision, and interference would only mean substituting its own decision, which it cannot do. The terms of the invitation to tender are not open to judicial scrutiny, being in the realm of contract. The Government must have freedom of contract, subject to fair play in action. Review lies for illegality, irrationality and procedural impropriety.

In one line

Judicial review began as an English judge's claim that the common law could control an Act of Parliament, was made real in America, and reached India first as the prerogative writs and then as a written constitutional power.

In the wording a student can write in an exam: the doctrine of judicial review originated in the assertion in Dr Bonham's Case that the common law may control an Act of Parliament, was established as a working power in Marbury v Madison, entered India through the prerogative writs exercisable by the Presidency High Courts, and was constitutionalised in 1950 by Articles 13, 32, 226, 227 and 136.

MU's question

Set as a short note, "Historical development of Judicial Review", and twice as a whole essay, once as the origin and development of the notion of judicial review with special reference to writs, and once as the journey of the doctrine from its origin to the principle of basic structure. This chapter is the first two of those; the third is [Judicial Review and the Basic Structure].

Stage one: the English root, and its failure

In 1610, in Dr Bonham's Case, Chief Justice Coke said that in many cases the common law will control Acts of Parliament and sometimes adjudge them to be utterly void, when an Act is against common right and reason. The College of Physicians had fined and imprisoned Bonham for practising without its licence and kept half the fine, so it was judge in its own cause, which is why the case is also the ancestor of the rule against bias.

The claim did not survive in England. The seventeenth century settled the supremacy of Parliament, and an English court cannot to this day declare an Act void. What England kept was the second half of judicial review, control of the executive, exercised through the prerogative writs issued by the Court of King's Bench in the name of the Crown.

Stage two: America makes it real

Marbury v Madison, 5 U.S. 137 (1803), gave the doctrine its institutional form: a written constitution is law, it is superior to ordinary legislation, and it is emphatically the province and duty of the judicial department to say what the law is, so a court faced with a statute repugnant to the Constitution must apply the Constitution. Judicial review of legislation as a working power dates from that decision.

Stage three: the writs come to India

The Supreme Courts of the Presidency towns. The Regulating Act 1773 and the charters that followed created Supreme Courts at Calcutta, Madras and Bombay, which exercised the same prerogative writ jurisdiction as the King's Bench, but only over the Presidency towns.

The High Courts. The Indian High Courts Act 1861 replaced them, and the Presidency High Courts inherited the writ jurisdiction. So until 1950 the writs existed in India but only three High Courts could issue them and only within limited territory. A citizen in the mofussil had no writ at all.

In one line

Judicial review in India is not implied, argued for or inherited; it is written down, and Article 13 is the sentence that writes it.

In the wording a student can write in an exam: the Constitution establishes judicial review expressly, by declaring in Article 13 that a law inconsistent with the fundamental rights is void, by conferring the writ jurisdiction on the Supreme Court in Article 32 and on the High Courts in Article 226, by giving the High Courts superintendence in Article 227, and by distributing legislative power in Article 246 so that a law outside the competence of the legislature that made it is void.

Article 13, read clause by clause

Clause (1). All laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III, shall to the extent of such inconsistency be void.

Clause (2). The State shall not make any law which takes away or abridges the rights conferred by Part III, and any law made in contravention of this clause shall to the extent of the contravention be void.

Clause (3)(a). "Law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

Clause (3)(b). "Laws in force" includes laws passed or made by a legislature or other competent authority before the commencement of the Constitution and not previously repealed.

Clause (4). Nothing in this article shall apply to any amendment of the Constitution made under Article 368. This clause was inserted by the Twenty-fourth Amendment.

Why clause (3)(a) is the most important sentence in Module IV

Because it puts a rule, a regulation, a bye-law and a notification into the same category as an Act for the purposes of Part III. A rule made by a ministry is "law", so a rule inconsistent with Article 14 or Article 19 is void exactly as a statute would be. That is the constitutional foundation of [A Rule Contrary to the Constitution], and it is why Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515, could say that subordinate legislation may be questioned on every ground on which a statute may be questioned and on additional grounds besides.

Where the Constituent Assembly stood

Two things were settled in the Assembly and both matter to an examiner.

The remedy came first. Dr Ambedkar described Article 32 as the very soul of the Constitution and the very heart of it, on the ground that a right without a remedy to enforce it is not a right at all. That is the source of MU's quotation about the right to constitutional remedies being the heart and soul, dealt with in [The Right to Constitutional Remedies as the Heart and Soul of the Constitution].

In one line

Judicial review does three different jobs, and a student who does not keep them apart will answer the wrong one.

In the wording a student can write in an exam: judicial review in India operates on three kinds of action: legislative action, where a statute is tested against the Constitution; administrative action, where an executive act is tested against the statute and the Constitution; and judicial action, where the decision of a subordinate court or tribunal is tested for jurisdiction and for error apparent on the record.

Why the classification matters

Because the test, the standard and the remedy differ in each.

Against a statute the court asks about legislative competence, violation of Part III, and violation of any other constitutional provision. It cannot ask whether the statute is a good idea. If it succeeds, the law is declared void, wholly or to the extent of the inconsistency.

Against an administrative act the court asks the questions of Module II: was the power there, was it exercised for the right purpose, on relevant considerations, without bias, after a hearing, reasonably. If it succeeds, the order is quashed and the matter usually goes back.

Against a judicial decision of a subordinate body the court asks whether the body had jurisdiction, whether it exceeded it, whether it observed natural justice, and whether there is an error of law apparent on the face of the record. It does not reappreciate evidence.

The three limbs, with their authorities

Legislative action. Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461, and the basic structure line are the extreme case, but the ordinary case is competence and Part III. Delegated legislation is reviewed on wider grounds still, which is Module IV, and Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515, is the authority that subordinate legislation does not carry the immunity a statute does.

Administrative action. The whole of Modules II and III.

Judicial action of subordinate bodies. Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477.

Facts. The State Transport Appellate Tribunal granted a stage carriage permit on the Madras to Chidambaram route. A rival moved the High Court for certiorari and the High Court quashed the grant on the view that the Tribunal had overlooked relevant considerations and allowed irrelevant ones to prevail.

Held. The jurisdiction is supervisory and not appellate. The court does not review findings of fact however erroneous, and it cannot reappreciate evidence. An error of law apparent on the face of the record can be corrected, but not an error of fact however grave it may look. A finding of fact reached on no evidence at all is an error of law; a finding on insufficient or inadequate evidence is not.

In one line

When a court strikes down an Act it says Parliament could not do this; when it quashes an order it says this officer did not do it properly, and the two sentences have almost nothing in common.

In the wording a student can write in an exam: review of legislation tests a law against the Constitution alone and, if it succeeds, declares the law void for everybody; review of administrative action tests an act against both the parent statute and the Constitution and, if it succeeds, quashes that act as between the parties and ordinarily leaves the authority free to act again lawfully.

Why students confuse them

Because MU's questions move between them without warning. A question about the grounds of judicial review is about administrative action; a question about the basic structure is about legislation; a question about delegated legislation is about both at once. A candidate who has one undifferentiated idea of judicial review will answer the wrong one.

The differences, worked

What is tested, and against what. A statute is tested against the Constitution: legislative competence under Articles 245 and 246, Part III through Article 13, and any other constitutional restriction. An administrative act is tested first against its own parent Act, because it must be within the power conferred, and then against the Constitution.

The presumption. A statute enjoys a presumption of constitutionality, and the burden is on the person attacking it. An administrative order enjoys no such presumption; where the order affects rights, the authority has to show the power and, increasingly, the reasons.

Motive. The motive of a legislature is not examinable: a court asks what the law does, not why the House passed it. The motive of an administrator is examinable, and it is the ground of mala fides and improper purpose in Module II.

Procedure. A legislature owes no hearing to anybody. An administrator owes a hearing wherever civil consequences follow.

Reasons. A legislature gives none. A quasi-judicial authority must ordinarily give them: S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.

The effect of success. A law held unconstitutional is void, and the declaration operates generally. An order quashed is quashed in that case, and the authority may usually make a fresh and lawful order on the same facts.

Where the two meet: delegated legislation

A rule is made by an administrator but is legislative in character, and it therefore attracts elements of both regimes. It is legislative for the purpose of natural justice, so no hearing is owed, which is Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277. It is administrative for the purpose of ultra vires, because it must be within the parent Act. And it is "law" under Article 13(3)(a), so it can be struck down for violating a fundamental right exactly as a statute can. That is why Module IV exists as a separate module.

In one line

The scope of judicial review in India is as wide as public power itself, and its limits are almost all self-imposed.

In the wording a student can write in an exam: the scope of judicial review extends to every exercise of public power, legislative, executive, administrative or quasi-judicial, by every authority answerable under the Constitution; its limits are of two kinds, those inherent in the nature of review, which is of legality and not of merits, and those the courts impose on themselves in the exercise of a discretionary jurisdiction.

MU's question

Set twice as a whole question: the scope and limits of the powers of the judiciary in India to exercise judicial review under the Constitution, and the scope of the powers of the Supreme Court regarding judicial review together with the extent of the Article 32 jurisdiction. This chapter states the scope and summarises the limits; Module IV works each limit in detail.

The scope, in six propositions

One, it reaches every organ. Legislation, executive orders, delegated legislation, and the decisions of tribunals and subordinate courts.

Two, it reaches bodies that are not obviously the State. Article 12 catches instrumentalities, and Article 226 reaches beyond Article 12 to any body discharging a public duty: Zee Telefilms Ltd. v. Union of India, decided on 2 February 2005.

Three, it reaches the prerogative and the residuary. In India there is no prerogative in the English sense, but the same principle applies: a power is not immune because it is not statutory. The English authority is Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374, worked in [Illegality, Irrationality and Procedural Impropriety], which held that a power derived from the common law rather than a statute is not for that reason immune from review.

Four, it reaches a decision made final by statute. A finality clause does not touch Article 226, and even an ouster inserted by constitutional amendment failed in Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686.

Five, it cannot be taken away. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, holds that the power of review of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 is part of the basic structure.

Six, it carries its own remedies. Not only quashing but compensation in public law: Rudul Sah v. State of Bihar, AIR 1983 SC 1086.

The limits, in two families

Limits inherent in the nature of review. The court examines legality and not correctness. It does not reappreciate evidence. It does not substitute its own decision for that of the authority. It does not sit in appeal on an expert body's assessment. It does not decide policy. These are not discretionary; a court that crossed them would not be reviewing at all.

In one line

Parliament may amend the Constitution but may not destroy its basic structure, and judicial review is one of the things the basic structure is made of.

In the wording a student can write in an exam: the basic structure doctrine holds that the amending power in Article 368 does not extend to altering the basic structure or framework of the Constitution; judicial review has been held to be part of that basic structure, so the power to review cannot be removed either by ordinary legislation or by constitutional amendment.

MU's question

The University asks for the journey of the doctrine of judicial review from its origin to the principle of basic structure. The origin is [The Historical Development of Judicial Review]; the journey is this chapter, and it has six stages.

Stage one: the doctrine is born

Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461.

Facts. The head of a religious mutt challenged Kerala land reform legislation and, in the course of it, the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments, which had been passed to overcome earlier decisions restricting Parliament's power to amend the fundamental rights. Thirteen judges heard the case.

Held. Parliament has a wide power to amend the Constitution under Article 368, and that power extends to the fundamental rights, but it cannot be used to alter the basic structure or framework of the Constitution. Golak Nath was overruled to the extent that it denied the power to amend fundamental rights. No exhaustive list of basic features was given; supremacy of the Constitution, the republican and democratic form of government, its secular character, the separation of powers and its federal character were among those named.

Why it matters here. It creates the limit. Everything that follows is an application of it to a device that tried to remove a court.

Stage two: the doctrine strikes an amendment down

Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.

Facts. After the Allahabad High Court set aside the Prime Minister's election, the Thirty-ninth Amendment inserted Article 329A, clause (4) of which declared that the election of a person holding the office of Prime Minister or Speaker should not be deemed void and that no court should have jurisdiction over it, notwithstanding any judgment already given.

Held. Clause (4) was struck down as destroying the basic structure. It decided the dispute itself instead of leaving it to be decided by a court applying the law, and it decided it with no law being applied at all, which is an exercise of judicial power by the constituent body and offends the separation of powers, the rule of law and free and fair elections.

Why it matters here. It is the first application of the doctrine and it is an application to an ouster of judicial review, which is exactly MU's topic.

In one line

MU's sentence means that the State may act, but only for reasons a court can see and understand, and never on a whim or for a hidden purpose.

In the wording a student can write in an exam: the proposition that state actions are amenable in the panorama of judicial review only to the extent that the State must act validly for discernible reasons and not whimsically for any ulterior purpose states three requirements: validity, which is the requirement of power; discernible reasons, which is the requirement of a rational and stated basis; and the absence of an ulterior purpose, which is the requirement of good faith.

Why this chapter exists

Because the University printed this exact sentence as a whole twenty-five mark question on two separate papers and asked candidates to elucidate it. It is not a quotation from a judgment the candidate must find; it is a proposition to be unpacked and supported by authority, and the three phrases in it map onto three groups of grounds in Module II.

The first requirement: the State must act validly

Validly means with power. Every act of the administration must be traceable to a source: the Constitution, a statute, a rule made under a statute, or the executive power under Articles 73 and 162 as explained in Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549. An act with no source is void however sensible it is, and that is the doctrine of ultra vires.

Validity has a second limb where a fundamental right is affected: the source must itself be valid. A rule is "law" under Article 13(3)(a), so a rule inconsistent with Part III cannot supply validity to anything.

The second requirement: for discernible reasons

Three things follow from the word discernible, and the marks are in all three.

There must be reasons at all, not merely a decision. An order made without applying the mind to anything is bad, which is the ground of non-application of mind.

The reasons must be relevant. An order made on a ground the statute does not recognise, or on a ground which did not exist, is bad even where nobody acted dishonestly, and S.R. Venkataraman v. Union of India, AIR 1979 SC 49, is the authority.

Facts. A Joint Director in the Directorate General of All India Radio was prematurely retired in the public interest under Fundamental Rule 56(j)(i). Her writ petition was dismissed in limine. On appeal the Union conceded that there was nothing on the record to justify the order and that it could not support it.

Held. There was no evidence of an actual malicious intention, so this was not malice in fact. But malice in the legal sense means malice such as may be assumed from the doing of a wrongful act intentionally without just cause or excuse, and where an authority makes an order in purported exercise of a power with no material at all on which it could have been made, the order is an abuse of power and is bad.

In one line

Jurisdiction is the power to decide, and in this paper the word is used in three different senses which a student must keep apart.

In the wording a student can write in an exam: jurisdiction means the authority conferred by law on a court or other body to decide a particular class of matter; in judicial review the word is used of the court's own power to entertain a petition, of the authority's power to make the decision complained of, and of the error which destroys that power and makes the decision a nullity.

Why MU prints a single word as a topic

Because "Jurisdiction" is the head under which the University has actually set Article 32, Articles 226 and 227, the five writs, locus standi and public interest litigation. The word has to be defined once, carefully, because the same word is doing three jobs in the same module, and the three jobs are the three sections of this chapter.

Sense one: the court's own jurisdiction

The question is whether this court can entertain this petition. It has four elements.

Subject matter. Article 32 is available only for the enforcement of a fundamental right; Article 226 is available for that and for any other purpose.

Territory. Article 226(1) confines a High Court to the territories in relation to which it exercises jurisdiction, and Article 226(2) extends it to a cause of action arising wholly or in part within those territories, notwithstanding that the seat of the Government or authority is outside them.

The person. Article 226 speaks of any person or authority, including in appropriate cases any Government, and its reach beyond Article 12 is dealt with in [The State under Article 12, and Who Can Be Sued in a Writ].

Standing. Who may bring the petition, dealt with in [Locus Standi: Who May Ask the Court to Review].

Sense two: the authority's jurisdiction

Every administrative authority has a power bounded by four things: the persons it may act upon, the territory it may act in, the subject matter it may act on, and the conditions the statute attaches. Ask, of any order, whether the officer who made it had the power over that person, in that place, on that subject, and on the facts the statute required to exist.

The last of the four is the important one, because it produces the concept of a jurisdictional fact: a fact whose existence the statute makes a condition of the power. If a section allows an officer to requisition a building "which has been vacant for six months", the vacancy is a jurisdictional fact, and if the building was not vacant no amount of good faith gives the officer power.

In one line

Article 32 gives you the right to walk into the Supreme Court when a fundamental right is broken, and that right is itself a fundamental right.

In the wording a student can write in an exam: Article 32 guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III, empowers the Court to issue directions, orders or writs including the five named writs for that purpose, permits Parliament to empower another court to exercise those powers, and provides that the right shall not be suspended except as otherwise provided by the Constitution.

The provision itself

Article 32 reads:

"(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution."

Clause by clause

"The right to move the Supreme Court is guaranteed." The guarantee is the key word. Article 32 is placed in Part III, so the right to the remedy is itself a fundamental right. That is why Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080, holds that the Court is bound to entertain a petition where a fundamental right is infringed and that the existence of another remedy is not by itself a ground for refusing relief, as it may be under Article 226.

"By appropriate proceedings." Not by a prescribed form. That is the textual room in which public interest litigation grew, because a letter can be an appropriate proceeding: Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

"For the enforcement of the rights conferred by this Part." The limit. Article 32 is not available to enforce an ordinary legal right, a statutory right or a contractual right, and this is the sharpest difference from Article 226.

"Directions or orders or writs, including." Two consequences. The Court is not confined to the five writs; it may make any order that will enforce the right, which is the textual basis for compensation in Rudul Sah v. State of Bihar, AIR 1983 SC 1086, and for the continuing directions given in public interest cases. And it is not bound by the English technicalities of form: T.C. Basappa v. T. Nagappa, AIR 1954 SC 440, holds that an Indian court may issue an order in the nature of a writ so long as the broad and fundamental principles regulating it are observed.

In one line

Ambedkar called Article 32 the heart and soul of the Constitution because a right you cannot enforce is not a right at all.

In the wording a student can write in an exam: the right to constitutional remedies in Article 32 is described as the heart and soul of the Constitution because the fundamental rights in Part III would be declaratory without a guaranteed and enforceable remedy; the remedy is placed in Part III itself, is available directly against the State, and cannot be taken away by ordinary law.

MU's question and how to answer it

The University sets this as a whole question: the statement attributed to Dr B.R. Ambedkar that the right to constitutional remedies is the heart and soul of the Indian Constitution, to be justified in the light of the different types of writs enshrined under the Constitution. So the answer needs three parts: what the statement means, why the framers took that view, and the five writs as the proof of it. The writs are worked in their own chapters and are summarised here.

What Ambedkar actually said, and where

He said it in the Constituent Assembly on 9 December 1948, in the debate on draft Article 25, which became Article 32. His words were that if he were asked to name any particular article in the Constitution as the most important, an article without which the Constitution would be a nullity, he could not refer to any other article except this one; it is the very soul of the Constitution and the very heart of it. The quotation is often given loosely, and it is worth giving it as an assertion about the article's importance rather than as a definition of the remedy.

Why the framers took that view

Because a right without a remedy is a wish. The English maxim is ubi jus ibi remedium, where there is a right there is a remedy. The framers did not leave the maxim to be inferred; they wrote the remedy into the chapter of rights.

Because they distrusted ordinary legislative protection. A remedy created by statute can be taken away by statute. A remedy in Part III cannot be taken away by an ordinary law at all, because Article 13(2) voids any law abridging a Part III right.

Because they had seen the alternative. Before 1950 only three High Courts could issue the writs, and only within the Presidency towns.

Because the Supreme Court was to be the guarantor. Romesh Thappar v. State of Madras, AIR 1950 SC 124, decided in the Court's first year, used exactly that language.

The writs as the proof

In one line

Article 32 is a guaranteed right, but it is a guaranteed right to enforce a fundamental right against the State, and every word of that sentence is a limit.

In the wording a student can write in an exam: Article 32 is available only where a fundamental right conferred by Part III is infringed, only against the State or a body answering Article 12, and only where the infringement is not the result of a judicial order of a competent court; the right may be restricted for the Forces under Article 33, is displaced by martial law under Article 34, is subject to Parliament's power under Article 35, and may be suspended during an Emergency under Article 359.

Limit one: a fundamental right, and nothing else

A petition under Article 32 must show that a right in Part III is infringed. A breach of a statute, of a rule, of a contract, or of an ordinary legal right is not enough. This is the difference from Article 226, which is available "for any other purpose".

The limit has an important qualification. Article 14 is a fundamental right, and after E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, arbitrariness violates Article 14. So a great deal of ordinary administrative illegality can be converted into an Article 14 point, which is why the limit is less confining in practice than it looks on paper.

Limit two: not against a mere error within jurisdiction

Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621.

Facts. A sales tax authority acting under an admittedly valid statute and within its jurisdiction misconstrued a notification and assessed a manufacturer on goods which were arguably exempt. The assessee came directly under Article 32, saying that an illegal tax infringed her rights to property and to trade.

Held. The petition failed. A quasi-judicial authority acting under a valid law and within its jurisdiction does not violate a fundamental right merely by deciding a question of fact or of construction wrongly. The error is within jurisdiction and the remedy is an appeal or certiorari under Article 226, not a petition under Article 32. An order can be attacked as ultra vires where the statute is unconstitutional, where the authority acts outside its jurisdiction, or where it violates a fundamental right independently of the statute.

Why it matters here. It is the discipline that stops Article 32 becoming a general appeal from every wrong assessment in India.

Limit three: not against a judicial order

Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, holds that a judicial order of a competent court cannot violate a fundamental right and that certiorari does not run against a High Court, which is a superior court of record; the remedy is an appeal. Rupa Ashok Hurra v. Ashok Hurra, AIR 2002 SC 1771, confirmed the position for the Supreme Court's own final judgments and created the curative petition instead.

In one line

Article 226 is the widest writ power in the Constitution, and Article 227 is the power of a High Court to keep every court and tribunal below it in order.

In the wording a student can write in an exam: Article 226 empowers every High Court, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs including the five named writs, for the enforcement of any of the rights conferred by Part III and for any other purpose; Article 227 gives every High Court superintendence over all courts and tribunals throughout those territories.

The text of Article 226

Clause (1). Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

Clause (2). The power may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises, notwithstanding that the seat of the Government or authority or the residence of the person is not within those territories.

Clause (3). Where an interim order is made against a party without furnishing him copies of the petition and the supporting documents and without giving him an opportunity of being heard, and he applies for its vacation and serves a copy of that application, the High Court shall dispose of the application within two weeks of receipt or of service, whichever is later, or before the expiry of the next day on which the Court is open if it is closed on the last day; and if the application is not so disposed of, the interim order shall stand vacated.

Clause (4). The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.

The four expressions that matter

"Notwithstanding anything in article 32". The two jurisdictions are independent. A High Court does not lose its power because the Supreme Court has one, and clause (4) says the same thing from the other side.

"To any person or authority, including in appropriate cases any Government". Wider than Article 12. A writ may go to a body which is not the State, provided the duty sought to be enforced is a public duty, which is what Zee Telefilms Ltd. v. Union of India, decided on 2 February 2005, said in terms when it held the cricket Board not to be the State but pointed to Article 226.

In one line

Article 32 is stronger and Article 226 is wider, and almost every difference between them follows from those two words.

In the wording a student can write in an exam: Article 32 is itself a fundamental right and is confined to the enforcement of fundamental rights; Article 226 is a constitutional power of the High Courts, not a fundamental right, but is available both for fundamental rights and for any other purpose, and is exercisable against any person or authority within the territory or where the cause of action arises.

The comparison, row by row

The three differences that decide cases

One, the purpose. This is the practical difference. Nine out of ten administrative law disputes involve no fundamental right at all: a licence refused contrary to a rule, a tender awarded against the terms of the notice, a pension miscalculated. Those go to a High Court under Article 226. The words "and for any other purpose" are the reason India has a working administrative law rather than a chapter of constitutional law.

Two, the strength of the guarantee. Under Article 32 the Court is the protector and guarantor and cannot decline merely because another remedy exists, which is Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080, and Romesh Thappar v. State of Madras, AIR 1950 SC 124. Under Article 226 the jurisdiction is discretionary from beginning to end.

Three, suspension. Article 359 suspends the right to move any court for the enforcement of Part III rights. Article 226, so far as it is used for a purpose other than a fundamental right, is untouched by such an order, which is a point of some importance and was one of the arguments in the Emergency litigation.

In one line

Article 227 lets a High Court keep every court and tribunal below it working properly, whether or not anybody complains.

In the wording a student can write in an exam: Article 227(1) provides that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction; the power is both judicial and administrative, may be exercised suo motu, and is not confined to the grounds on which certiorari lies.

The provision

Clause (1). Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

Clause (2). Without prejudice to the generality of that provision, the High Court may call for returns from those courts, make and issue general rules and prescribe forms for regulating their practice and proceedings, and prescribe forms in which books, entries and accounts are to be kept.

Clause (3). The High Court may settle tables of fees to be allowed to the sheriff, clerks, officers and legal practitioners, subject to any law and to the approval of the Governor where required.

Clause (4). Nothing in the article is to be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.

Why it is a separate power, and not a duplicate of certiorari

It is administrative as well as judicial. Clause (2) is plainly administrative: returns, rules, forms and accounts. No writ does that.

It may be exercised without a party asking. A High Court may act on the record before it, or on a return called for, whereas certiorari issues only on a petition.

It is not confined to the certiorari grounds. Certiorari lies for want or excess of jurisdiction, breach of natural justice and error of law apparent on the face of the record. Superintendence extends to keeping subordinate courts within their authority and to ensuring that they do their duty, which is a wider formula, though the courts have kept it disciplined so that it does not become an appeal.

It reaches courts as well as tribunals. Certiorari does not lie against a court of superior or co-ordinate jurisdiction, and its application to the ordinary civil courts was historically limited; Article 227 names all courts and tribunals within the territory.

The limits the courts have imposed

Because the words are so wide, the restraint is judge-made and a student should know its shape.

It is not an appellate power. The High Court does not reappreciate evidence or substitute its own conclusion on facts. The reasoning is the same as in Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, though that case was about certiorari.

In one line

Which High Court a writ petition goes to depends on where the cause of action arose, not on where the officer sits.

In the wording a student can write in an exam: Article 226(1) confines a High Court to the territories in relation to which it exercises jurisdiction, and Article 226(2) extends the power to any High Court within whose territories the cause of action, wholly or in part, arises, notwithstanding that the seat of the Government or authority or the residence of the person is outside those territories.

Why clause (2) exists

Before it, the position was that a writ could issue only to a person or authority within the territory of the High Court. The result was that a decision of a central authority sitting in Delhi, affecting a person in Nagpur, could be challenged only in Delhi. Clause (2), inserted in its present form by the Forty-second Amendment and retained after the Forty-fourth, cures that: it allows the High Court where the cause of action arose to act, whatever the location of the authority.

What "cause of action" means here

It is the bundle of facts which the petitioner must prove to succeed. In a writ petition it is usually made up of the events that led to the order: the application, the notice, the enquiry, the hearing, the communication of the order, and the effect of the order on the petitioner.

Three practical consequences follow.

Part of a cause of action is enough. The words are "wholly or in part".

Not every fact is part of the cause of action. A fact which is merely a piece of evidence, or which is incidental, does not create jurisdiction.

Mere residence of the petitioner is not enough. Nor is the mere fact that the petitioner received the order at his address, without more; otherwise every petitioner could choose his court by choosing where to open the envelope.

Forum conveniens

Even where a part of the cause of action arises within its territory, a High Court may decline to exercise the jurisdiction if another High Court is a more appropriate forum, because the writ jurisdiction is discretionary. That doctrine, borrowed from private international law, is the answer to forum shopping, and a court applies it by asking where the material events happened, where the records are and where the parties are.

A worked example

A public sector bank with its head office in Mumbai advertises posts nationally. A candidate in Nagpur applies, sits the written test in Nagpur, is interviewed in Nagpur by a committee constituted by the head office, and receives at his Nagpur address a letter from Mumbai rejecting him on the ground that he does not meet an eligibility condition.

In one line

Article 136 is the Supreme Court's power to hear any case from any court or tribunal in India, for no reason except that it thinks it should.

In the wording a student can write in an exam: Article 136(1) provides that notwithstanding anything in Chapter IV of Part V, the Supreme Court may in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India; clause (2) excepts any judgment, determination, sentence or order passed or made by a court or tribunal constituted by or under any law relating to the Armed Forces.

Why it belongs in a chapter on jurisdiction

Because MU's printed topic is the single word Jurisdiction, and because in practice a very large part of Indian administrative law reaches the Supreme Court through Article 136 rather than Article 32. It is not judicial review in the strict sense; it is an appellate jurisdiction. But it is discretionary in the way review is, and the Court has used it to lay down administrative law doctrine constantly.

The words that matter

"Notwithstanding anything in this Chapter." It overrides the ordinary appellate provisions, so it is available where no appeal is otherwise provided.

"In its discretion." There is no right of appeal under Article 136. The Court grants leave; a party can only ask.

"Special leave." Two stages: leave first, then the appeal. Refusal of leave is not a decision on the merits and does not attract res judicata in the way a judgment does.

"Any judgment, decree, determination, sentence or order." The widest possible words, covering interlocutory as well as final orders.

"By any court or tribunal." A tribunal is included expressly. Whether a body is a tribunal turns on whether it has the trappings of a court and is invested with the judicial power of the State.

Clause (2). Courts martial and Armed Forces tribunals are excluded.

The self-imposed limits

The article gives an unfettered power, and the Court has fettered it by practice. It will ordinarily grant leave only where there is a substantial question of law of general importance, or where there has been a gross miscarriage of justice. It does not interfere with concurrent findings of fact. It does not grant leave merely because another view is possible. And it will not ordinarily entertain a petition where the party has an efficacious alternative remedy.

Article 136 after L. Chandra Kumar

Before 1997 a litigant before an administrative tribunal could go directly to the Supreme Court under Article 136, because section 28 of the Administrative Tribunals Act 1985 and Article 323A(2)(d) had removed the High Courts. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, changed that: no appeal now lies directly to the Supreme Court from a tribunal under Article 136, and the litigant must first move a Division Bench of the High Court within whose jurisdiction the tribunal falls.

In one line

The five writs are five ancient English commands, each answering a different kind of wrong, and India took them and dropped the technicalities.

In the wording a student can write in an exam: the prerogative writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto originated in the King's prerogative power of superintendence over the observance of law by his officers and tribunals; Articles 32(2) and 226(1) empower the Supreme Court and the High Courts to issue directions, orders or writs in the nature of those five, and the courts are bound by the broad and fundamental principles regulating them but not by English forms.

Where they came from

They were writs of the Court of King's Bench, issued in the name of the Crown, by which the King's own court called officials and inferior tribunals to account. They were called prerogative writs because they issued out of the royal prerogative rather than as of right between subject and subject, and that origin explains two features they still have: they are discretionary, and they are public law remedies not available in a purely private dispute.

The Indian adaptation

T.C. Basappa v. T. Nagappa, AIR 1954 SC 440.

Facts. An election tribunal set aside an election and the losing side sought certiorari from the High Court under Article 226. The question was on what principles an Indian court issues a writ that had come from the English prerogative jurisdiction.

Held. The writs originated in England in the King's prerogative power of superintendence over the due observance of law by his officials and tribunals. The powers under Articles 32 and 226 are very wide, and a court in India may make an order or issue a writ in the nature of certiorari in all appropriate cases and in an appropriate manner, so long as the broad and fundamental principles of English law regulating the exercise of that jurisdiction are adhered to. Certiorari lies to review judicial acts, an expression which includes quasi-judicial functions of administrative bodies, but not purely ministerial acts. In granting certiorari the superior court does not exercise appellate powers.

Why it matters here. It is the foundation. India kept the principles and discarded the forms, which is why an Indian petition asks for a writ "in the nature of" certiorari and why a petitioner who asks for the wrong writ does not lose.

The five, in one table

In one line

Habeas corpus is the writ that asks a jailer one question: by what authority are you holding this person?

In the wording a student can write in an exam: habeas corpus, meaning that you have the body, is a writ directed to a person who detains another, requiring him to produce the body of the detenu and to show the authority for the detention; if no lawful authority is shown the court orders release, and the writ is issued as of right rather than as a matter of discretion where the detention is prima facie unlawful.

Why the law has this at all

Because personal liberty is the one right whose violation cannot wait. A licence wrongly refused can be restored next year; a man wrongly imprisoned cannot get the year back. So the common law gave liberty a remedy that is quick, that can be applied for by anybody, and that puts the burden on the detaining authority rather than on the person detained.

Article 21 protects life and personal liberty; Article 22 regulates arrest and preventive detention; and habeas corpus is the machinery by which both are enforced.

Who may apply, and against whom

Who may apply. The detenu himself, or any person on his behalf: a relative, a friend, a lawyer, or a stranger. The rule is looser here than for any other writ, because a person in custody cannot file his own petition. A letter has been treated as a petition.

Against whom. Any person who detains another, whether a public authority or a private person. This is the only writ that lies against a private individual as a matter of course, because the wrong is the detention and not the exercise of public power. A parent detaining an adult daughter, or an employer confining a workman, can be answered by habeas corpus.

What the court actually does

The rule nisi and the return. The court issues a rule calling on the detaining authority to justify the detention. The authority files a return setting out the authority for it. The court then decides whether the detention is lawful on the return.

Production of the body is not essential. Kanu Sanyal v. District Magistrate, Darjeeling, AIR 1973 SC 2684.

Facts. An undertrial prisoner petitioned under Article 32 for habeas corpus. The Court issued a rule nisi but directed that he need not be produced in person, and the question arose whether production is essential before the petition can be heard and decided.

Held. There is nothing in Article 32 that requires the body of the detained person to be produced before the application can be heard and decided, and the Court may dispense with production while issuing a rule nisi under its own Rules. The Constitution makers meant to give a person illegally restrained of liberty the same kind of remedy as had been fashioned in England and the United States, and the substance of the remedy is the enquiry into the legality of the detention.

In one line

Habeas corpus is used mostly against preventive detention, and in 1976 the Supreme Court held that during an Emergency it could not be used at all.

In the wording a student can write in an exam: preventive detention is detention without trial, authorised by Article 22(3) to (7) and by statutes made under Entry 9 of List I and Entry 3 of List III; habeas corpus is the remedy against it, but Article 359 permitted the President to suspend the right to move any court for the enforcement of Part III rights during an Emergency, and ADM Jabalpur held that no such petition was maintainable while that order was in force.

Preventive detention in the Constitution

Article 22(1) and (2) give an arrested person the right to be informed of the grounds of arrest, to consult a legal practitioner, and to be produced before a magistrate within twenty-four hours. Article 22(3) then says that those two clauses do not apply to an enemy alien or to a person detained under a law providing for preventive detention.

Article 22(4) limits detention to three months unless an Advisory Board of persons qualified to be High Court judges reports sufficient cause. Article 22(5) requires the grounds to be communicated as soon as may be and the earliest opportunity of making a representation. Article 22(6) allows facts to be withheld if disclosure is against the public interest. Article 22(7) allows Parliament to prescribe circumstances in which detention beyond three months is permitted without an Advisory Board.

So the Constitution itself authorises detention without trial, and then supplies a minimum procedure. Habeas corpus enforces that procedure.

The Emergency case

Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.

Facts. During the Emergency a Presidential order under Article 359(1), dated 27 June 1975, suspended the right of any person to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22. Persons detained under the Maintenance of Internal Security Act 1971 nevertheless obtained relief in habeas corpus petitions before several High Courts, which held that they could still show that the detention was not under the Act at all. The State appealed.

Held. By majority, no person had any locus standi to move a writ petition for habeas corpus to challenge the legality of an order of detention while the Presidential order was in force, because Article 21 was the sole repository of the right to life and personal liberty and the right to move a court to enforce it had been suspended. Justice H.R. Khanna dissented, holding that the sanctity of life and liberty is not the gift of the Constitution and that the State has no power to deprive a person of life or liberty without the authority of law even in an emergency.

In one line

Mandamus is the writ that makes a public authority do the thing the law obliges it to do.

In the wording a student can write in an exam: mandamus, meaning we command, is a writ issued to a person, corporation, inferior tribunal or public authority commanding the performance of a public duty imposed by the Constitution, a statute or the common law, where the applicant has a legal right to that performance and has demanded it and been refused.

Why the law has this at all

Certiorari and prohibition answer excess. Mandamus answers inaction, and inaction is the commonest administrative wrong there is. An application that is never decided, a pension that is never sanctioned, a statutory duty that is never discharged: none of those produces an order that can be quashed, because no order exists. Mandamus is the remedy that fits.

The conditions, in the words of the leading case

Praga Tools Corporation v. C.A. Imanual, AIR 1969 SC 1306.

Facts. The appellant was a company registered under the Companies Act in which the Union Government held fifty-six per cent and the Andhra Pradesh Government thirty-two per cent of the shares. It had settled with its workmen's union not to retrench during a period of industrial truce and then made a further agreement permitting retrenchment. The workmen sought a mandamus under Article 226 to restrain the company from acting on the later agreement.

Held. Mandamus did not lie. The condition precedent to the issue of a mandamus is that there is in the applicant a legal right to the performance of a legal duty by the person against whom it is sought. An order of mandamus is in form a command directed to a person, corporation or inferior tribunal requiring him or them to do a particular thing which appertains to his or their office and is in the nature of a public duty. It is not necessary that the person on whom the statutory duty is imposed be a public official or an official body; a mandamus can issue to an official of a society to compel him to carry out the terms of the statute under which the society is constituted, and to companies or corporations to carry out duties placed on them by the statutes governing them. But it will not issue to enforce an obligation arising purely out of a contract, and government shareholding does not convert a contractual obligation into a public duty.

Why it matters here. It states the conditions and it draws the boundary: mandamus is about a public duty, not about a bargain.

The five conditions in a list

1. A legal right in the applicant, not a mere hope or interest.
2. A corresponding legal duty in the respondent, imposed by the Constitution, a statute, statutory rules or the common law.
3. The duty must be public in character. A duty arising purely from contract is not enough.
4. A demand and a refusal, express or to be inferred from conduct. The rule exists so that the authority is given a chance to comply, and it is dispensed with where a demand would plainly be futile.
5. No other equally efficacious remedy, which is the alternative remedy rule of [Alternative Remedies].

In one line

Mandamus goes to a public duty, so the applicant must have a right to its performance and the respondent must owe it.

In the wording a student can write in an exam: mandamus may be sought by a person whose legal right to the performance of a public duty has been infringed, and, in a public interest matter, by a person acting bona fide for those who cannot come to court; it lies against the State, statutory authorities, local bodies, public corporations, and private bodies on whom a statute imposes a public duty, but not to enforce a purely contractual obligation.

Who may ask

A person aggrieved. The ordinary rule. He must show a legal right, not a mere expectation, and the right must be his own.

Any member of the public, for a public duty owed to the public. Where the duty is owed to the public at large rather than to an individual, a member of the public with a genuine interest may apply. This is the older exception, and it grew into public interest litigation.

A person acting for those who cannot come. S.P. Gupta v. President of India, AIR 1982 SC 149, worked in [Public Interest Litigation and Judicial Review].

Not a busybody. Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305, holds that the relaxation of standing does not turn the courts into a forum for a meddlesome interloper or a person with a personal, political or oblique motive.

Against whom it lies

The Union and the States, through their officers.

Statutory authorities and local bodies, on duties imposed by their Acts.

Public corporations and instrumentalities, on public duties. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331, matters here because it holds that regulations framed under a corporation's constituting Act have the force of law, so a breach of them is a breach of a legal duty and not merely of an internal rule.

Private bodies discharging a public duty. Zee Telefilms Ltd. v. Union of India, decided on 2 February 2005, held that a body which is not the State under Article 12 may still be reached under Article 226 in respect of a public duty.

Officials of a society or a company where a statute imposes the duty. Praga Tools says this in terms.

Against whom it does not lie

A purely private person on a private obligation.

On a contract. Praga Tools Corporation v. C.A. Imanual, AIR 1969 SC 1306, worked in [The Writ of Mandamus], is the authority, and the point survives even where the Government holds most of the shares.

The President and the Governors, in respect of the exercise of the powers and duties of their office, having regard to Article 361.

In one line

Certiorari is the writ that brings up a decision already made and quashes it.

In the wording a student can write in an exam: certiorari, meaning to be certified, is a writ issued by a superior court to an inferior court, tribunal or authority requiring the record of a decision to be transmitted so that it may be quashed, on the grounds of want or excess of jurisdiction, violation of the principles of natural justice, or an error of law apparent on the face of the record.

The foundational statement

T.C. Basappa v. T. Nagappa, AIR 1954 SC 440, worked in [The Five Writs and Where They Came From], holds that an Indian court may issue an order in the nature of certiorari in all appropriate cases so long as the broad and fundamental principles regulating the writ are adhered to; that it lies to review judicial acts, an expression which includes the quasi-judicial functions of administrative bodies but not purely ministerial acts; and that in granting it the superior court does not exercise appellate powers.

Against whom, and the collapse of the old limit

The traditional requirement was a body with a duty to act judicially, which is why Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222, refused it against a requisition. That limit went with A.K. Kraipak v. Union of India, AIR 1970 SC 150, and certiorari now lies against an administrative body which determines rights, provided the decision is not legislative and not purely ministerial.

It does not lie against a superior court of record: Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

The three grounds

One, want or excess of jurisdiction. The body had no power over the person, the place, the subject matter or on the facts required to exist; or it exceeded the power it had. This is worked in [Jurisdictional Error and the Collateral Fact Doctrine].

Two, violation of the principles of natural justice. No notice, no hearing, bias, a decision by one who did not hear, reliance on undisclosed material. Module III.

Three, error of law apparent on the face of the record. A mistake of law that appears from the order and the proceedings themselves and needs no long argument to establish. This is worked in [Error of Law Apparent on the Face of the Record].

To those three the modern law adds a fourth in substance: a finding of fact based on no evidence at all, which is treated as an error of law.

The great limit: it is not an appeal

Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233.

Facts. An election tribunal decided an election petition and then became functus officio. The losing side sought certiorari, and it was argued both that Article 329(b) barred the High Court and that certiorari could not issue against a tribunal that no longer existed.

In one line

Prohibition stops a body that is about to decide something it has no business deciding.

In the wording a student can write in an exam: prohibition is a writ issued by a superior court to an inferior court, tribunal or authority forbidding it to continue proceedings which are without jurisdiction or in excess of jurisdiction, or which are in violation of the principles of natural justice; it is preventive, and is available only while the proceedings are pending.

Why the law has this at all

Because a remedy that arrives only after the decision arrives too late. A person dragged through a long enquiry by a body with no power over him has lost the time and the money whatever the eventual order. Prohibition lets him stop it at the door.

The essentials

A proceeding must be pending. If the decision has been made, prohibition is useless and certiorari is the remedy. Where part of the proceeding is over and part remains, both may be sought.

The body must be judicial or quasi-judicial. Historically the writ was confined to such bodies. As with certiorari, the limit has softened, and prohibition now runs against an administrative body determining rights.

The defect must go to jurisdiction. Prohibition is not available for an error of law within jurisdiction, which is a real difference from certiorari.

It is not confined to a total want of jurisdiction. It lies also where jurisdiction exists but is being exceeded, and where the proceeding offends natural justice or a fundamental right.

The leading Indian illustration

S. Govinda Menon v. Union of India, AIR 1967 SC 1274.

Facts. A member of the Indian Administrative Service, while holding the post of Commissioner of Hindu Religious and Charitable Endowments in Kerala, was the subject of complaints about the grant of certain leases. The State instituted disciplinary proceedings, suspended him and appointed an enquiry officer. He sought certiorari to quash the proceedings and prohibition to stop them, arguing that his acts as Commissioner were the acts of a statutory authority and could be questioned only in appeal or revision under the endowments Act, and not in a departmental enquiry.

Held. No case had been made out for a writ of prohibition. Prohibition issues where a body is proceeding without jurisdiction or in excess of it, and here the disciplinary authority had jurisdiction: an act or omission in the discharge of statutory functions could form the subject of disciplinary proceedings under the service rules if it reflected on the officer's integrity or devotion to duty. Prohibition is not a remedy against an error committed within jurisdiction.

Why it matters here. It is the Indian statement of what the writ is for, and it shows the commonest mistake, which is to ask for prohibition when the complaint is really about the merits.

In one line

Quo warranto asks a man holding a public office one question: by what authority do you hold it?

In the wording a student can write in an exam: quo warranto, meaning by what authority, is a writ calling upon the holder of a public office to show the court under what authority he holds it, and where the holder is found not to be entitled the court declares the office vacant and restrains him from acting; the office must be public, of a substantive character, and created by statute or by the Constitution.

Why the law has this at all

Because an office held without title is a continuing wrong to the public, and the ordinary law offers no way to raise it. A private person suffers no special injury when an unqualified man is appointed a Reader in English, so no ordinary suit lies. Quo warranto exists because the public has an interest in public offices being lawfully filled.

The conditions

The office must be public. Created by the Constitution or by a statute, and concerned with the affairs of the public. An office in a private company or a private club is outside the writ.

It must be substantive. A permanent office, independent in character, not merely the function of an agent or a servant who holds at the pleasure of another.

The holder must be in possession of it. The writ does not lie in respect of an appointment that has not been made or has already ended.

The appointment must be contrary to law. Want of the prescribed qualification, a defect in the constitution of the appointing body, or a bar in the statute.

Who may apply

Anybody. This is the one writ where the standing rule is at its widest, because the wrong is to the public and the applicant need not show a personal injury or an interest in the office. He must, however, be acting bona fide and not from a private grudge, and the court has a discretion to refuse a stale or motivated petition.

The limit: the court does not sit in appeal on merit

University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491.

Facts. Mysore University advertised posts of Professor and Reader, prescribing for a Reader a first or high second class Master's degree, a research degree of doctorate standard or published work of a high standard, and five years of post-graduate teaching. A Board of Appointment selected a candidate as Reader in English. An unsuccessful candidate sought quo warranto calling upon him to show by what authority he held the post, and a mandamus.

Held. The writ calls on the holder of a public office to show the court by what authority he holds it, and its object is to prevent a person from holding an office he is not legally entitled to. The court examines whether the office is public and of a substantive character, created by statute or by the Constitution, and whether the holder was appointed in accordance with the law. But where an expert Board has assessed the fitness of a candidate against the prescribed qualifications, the High Court under Article 226 will not sit in appeal on that assessment.

In one line

A jurisdictional error is a mistake that destroys the power to decide, so the decision is not a bad decision but no decision at all.

In the wording a student can write in an exam: a jurisdictional error is an error which goes to the authority's power to enter upon or to continue the enquiry, as distinct from an error made in the course of a lawful enquiry; a decision affected by such an error is a nullity, is unprotected by a finality clause, and may be quashed by certiorari or ignored.

The old picture: two kinds of error

Error going to jurisdiction. The authority never had power, or lost it, so its decision is void.

Error within jurisdiction. The authority had power and used it wrongly, so the decision stands unless corrected on appeal or, where the error is apparent on the record, by certiorari.

That distinction is the foundation of the whole subject, and it is why the same wrong answer can be fatal in one case and harmless in another.

The collateral fact doctrine

A statute often makes the power depend on a fact. Where it does, that fact is called a jurisdictional or collateral fact, and its existence is for the court and not for the authority.

The classic illustration is a section permitting an officer to requisition premises which are vacant. Whether the premises are vacant is not part of what the officer decides; it is the condition on which he may decide anything. If he decides wrongly that they are vacant, he does not make a wrong decision within his power, he assumes a power he never had.

The difficulty, and the reason the doctrine has always been slippery, is that a statute rarely says which of its conditions are jurisdictional. Courts decide by construction, and the same words have been read both ways in different statutes.

Ujjam Bai and the classification of errors

Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621.

Facts. A sales tax authority, acting under a valid statute and within its jurisdiction, misconstrued a notification and taxed goods which were arguably exempt. The assessee moved the Supreme Court under Article 32, saying that an illegal tax infringed her fundamental rights.

Held. The petition failed. A quasi-judicial authority acting under a valid law and within its jurisdiction does not violate a fundamental right merely by deciding a question of fact or of construction wrongly; the error is within jurisdiction, and the remedy is an appeal or certiorari under Article 226. An order may be attacked as ultra vires in three situations: where the statute under which it is made is unconstitutional; where the authority acts outside its jurisdiction; and where it violates a fundamental right independently of the statute.

In one line

An error apparent on the face of the record is a mistake of law so plain that it can be seen from the order itself, without argument and without evidence.

In the wording a student can write in an exam: an error of law apparent on the face of the record is a self-evident error of law appearing from the record of the proceedings, which requires no elaborate argument or extraneous evidence to establish; it is a ground for certiorari even where the authority acted within its jurisdiction, and it is the only ground on which a writ court corrects a decision that is merely wrong.

Why the ground exists at all

Because the jurisdictional grounds do not reach every serious mistake. A tribunal with power to decide may simply misread the section it is applying, and if certiorari lay only for want of jurisdiction the mistake would stand. The ground of error on the face of the record was developed to catch exactly that case, and it is deliberately narrow, because if it were wide certiorari would become an appeal.

What counts as "the record"

The order itself and its reasons. The pleadings. The issues. The documents that form part of the proceedings, and the evidence so far as it is set out or referred to in the order. What is not part of the record is affidavit material filed in the writ petition, and anything else which has to be brought in from outside to demonstrate the error.

That is the whole reason for the qualifier "apparent". If a petitioner must file affidavits to establish the mistake, it is not apparent on the record even if it is a mistake.

What counts as an error of law

A misconstruction of the statute or rule being applied. A failure to apply the correct provision. Applying a provision that has been repealed. Ignoring a binding decision. Applying a wrong test. Reaching a conclusion no reasonable body could reach on the material, where that is evident from the order.

The two cases that fix the ground

Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233, worked in [The Writ of Certiorari], establishes the ground alongside jurisdiction and natural justice, and holds that the writ goes to the record, which is why a tribunal that has become functus officio can still be reached.

Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, fixes its boundary. The jurisdiction is supervisory and not appellate; a writ court does not review findings of fact however erroneous and cannot reappreciate evidence; an error of law apparent on the face of the record can be corrected, but not an error of fact, however grave it may look; a finding of fact reached on no evidence at all is an error of law, and a finding reached on insufficient or inadequate evidence is not.

In one line

A writ court corrects mistakes about the law and leaves mistakes about the facts alone, and the hard cases are the ones in the middle.

In the wording a student can write in an exam: a question of law is one about the existence, meaning or application of a legal rule; a question of fact is one about what happened; a mixed question of law and fact arises where the legal effect of established facts is in issue, and it is treated as a question of law to the extent that it involves the construction of the rule.

Why MU prints it as a topic of its own

Because it decides the outcome of most certiorari petitions. A student who cannot separate the two will draft a writ petition that reads like an appeal, and the court will say so in the first paragraph of its order.

The three categories

Pure questions of fact. Did the tenant sublet? Was the applicant present at the enquiry? Is the building more than fifty years old? These are decided on evidence and are for the authority alone.

Pure questions of law. What does subletting mean in the section? Does the Act apply to premises let for a business? Was the notice required to be in writing? These are for the court.

Mixed questions. Given that the tenant allowed his brother to occupy a room and took no rent, is that subletting? The primary facts are found by the authority; whether those facts satisfy the statutory description is a question of law, because it requires the section to be construed.

The rule the courts apply

Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, is the whole of the law for practical purposes. The jurisdiction is supervisory, not appellate; the court does not review findings of fact however erroneous; it cannot reappreciate evidence; an error of law apparent on the face of the record may be corrected but an error of fact may not, however grave it may look; a finding of fact reached without any evidence at all is an error of law, while a finding reached on insufficient or inadequate evidence is not.

Two consequences follow, and both are examinable.

No evidence is a question of law. If the record shows nothing at all on which the finding could rest, the authority has decided arbitrarily and the error is one of law.

Insufficient evidence is not. If there was some material, the weight of it is for the authority.

Where the line moves

Jurisdictional facts. A fact on which the power itself depends is for the court, however factual it looks, which is [Jurisdictional Error and the Collateral Fact Doctrine].

In one line

Locus standi is the right to be heard by a court, and for most of legal history it belonged only to the person who had been hurt.

In the wording a student can write in an exam: locus standi means the standing or capacity of a person to bring proceedings before a court; the traditional rule confined it to a person aggrieved, that is a person whose legal right or legally protected interest has been injuriously affected, and it has been relaxed in India so that any member of the public acting bona fide may move the court on behalf of persons who cannot approach it themselves.

The traditional rule and the reason for it

A court decides disputes. If anybody could bring any grievance, the courts would be flooded with the complaints of strangers, litigation would be brought for private motives under a public colour, and the person actually affected, who may have chosen not to litigate, would find his affairs argued by somebody else. So the law required an injury to the applicant.

The three categories

Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, AIR 1976 SC 578.

Facts. The appellant ran an existing cinema. He challenged by writ petition the grant of a no objection certificate to a rival for a new cinema in the same town, saying that the licensing authority had not complied with the rules. His real complaint was that the new cinema would compete with his own.

Held. The petition failed for want of standing. Persons who come to a writ court fall into three categories: a person aggrieved, a stranger, and a busybody or meddlesome interloper. Only a person aggrieved, whose legal right or legally protected interest has been injuriously affected, is ordinarily entitled to relief; a busybody is turned away. A trader has no legal right to be free from lawful competition, so the loss of custom to a new rival does not make him a person aggrieved.

Why it matters here. It is the classical Indian statement of the rule and of the three categories, and it is the baseline that public interest litigation departed from.

Where the traditional rule was always wider

Quo warranto. Any member of the public may apply, because the wrong is to the public: [The Writ of Quo Warranto].

Habeas corpus. Anybody may apply on behalf of the detenu, because he cannot apply himself.

Public nuisance and public duties owed to the public at large. A member of the public with a genuine interest could always move for mandamus where the duty was owed to the public generally.

So the relaxation that produced public interest litigation was not an invention out of nothing; it was the extension of exceptions that already existed.

In one line

Public interest litigation is a case brought by somebody who has suffered nothing, on behalf of people who cannot come to court.

In the wording a student can write in an exam: public interest litigation is litigation initiated in a court of law for the protection of the public interest or of the rights of a class of persons who by reason of poverty, disability or a socially or economically disadvantaged position are unable to approach the court themselves; it rests on a relaxation of the rule of locus standi and on a relaxation of procedure, and is brought under Article 32 or Article 226.

MU's question

The University sets this as a short note on three papers, and on the most recent paper as a lettered head coupled with locus standi. The answer needs its origin, what it changed, an example or two, and its limits, which are in [The Abuse of Public Interest Litigation].

Why it began

Two facts about India in the 1970s. The Constitution gave rights to everybody, and the machinery to enforce them was available in practice only to people who could pay for it. And the courts had emerged from the Emergency needing to re-establish their standing. Public interest litigation is the answer the Court gave to the first problem, and it also served the second.

What was relaxed

Standing. S.P. Gupta v. President of India, AIR 1982 SC 149, worked in [Locus Standi: Who May Ask the Court to Review], allows any member of the public acting bona fide to move the court for a person or a determinate class unable to approach it.

Procedure. A letter or a postcard may be treated as a petition, which is called epistolary jurisdiction; the Court may appoint commissioners to gather facts; and it may give continuing directions instead of a single final order. The authority is Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

Facts. An organisation working against bonded labour wrote to the Supreme Court about the conditions of workmen in stone quarries in Faridabad, alleging bonded labour and inhuman conditions. The letter was treated as a petition under Article 32. The respondents objected that the Court could not conduct a fact-finding enquiry and that a letter was not a petition.

Held. Article 32 does not confine the Supreme Court to any particular form of proceeding, and it may adopt whatever procedure is appropriate, including appointing commissioners to gather facts. A person acting bona fide for a disadvantaged class may move the Court by letter. Detailed directions were given for the identification, release and rehabilitation of bonded labourers.

Why it matters here. It is the authority for both procedural devices, and it shows a court doing something no ordinary civil proceeding permits.

In one line

A public interest case is not tried; it is investigated, directed and supervised, and none of that looks like an ordinary writ petition.

In the wording a student can write in an exam: a public interest proceeding is begun by a letter or a petition, is entertained after the court satisfies itself of the petitioner's credentials, is proved by reports of commissioners appointed by the court rather than by ordinary evidence, and is disposed of by continuing directions whose compliance the court monitors, with contempt as the sanction.

Stage one: how it begins

Epistolary jurisdiction. A letter addressed to the Court or to a judge may be registered as a writ petition. The practice began with Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, and both the Supreme Court and the High Courts now have registries which process such letters.

Court fee and form. Ordinary requirements are relaxed. A petitioner is not thrown out for the shape of his paper.

Suo motu proceedings. A court may register a matter on its own, usually on a newspaper report.

Stage two: the threshold check

Since Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305, and the guidelines in State of Uttaranchal v. Balwant Singh Chaufal, AIR 2010 SC 2550, the court verifies the credentials of the petitioner before entertaining the petition, satisfies itself prima facie about the correctness of the contents, and asks whether substantial public interest is involved and whether the petition is aimed at redressal of genuine public harm with no private motive.

Stage three: finding the facts

This is the part that has no counterpart in ordinary litigation. The court cannot try disputed questions of fact on affidavits, and the persons affected are usually not before it. So it appoints somebody to go and look: a district judge, a lawyer, a member of a legal services authority, a committee of experts, or a body of officials. The commissioner's report becomes material on which the court acts, and the respondents are given an opportunity to answer it.

Bandhua Mukti Morcha is the authority for this. Article 32 does not confine the Court to any particular form of proceeding, and it may adopt whatever procedure is appropriate to the enquiry.

Stage four: the order

Continuing mandamus. Instead of one final direction, the court gives a direction, fixes a date, receives a compliance report, gives further directions, and keeps the matter alive. It is used where the wrong is a state of affairs rather than an event.

Structural directions. Directions to frame rules, to constitute a committee, to appoint officers, to fix standards.

Interim relief that is really final. In prison and shelter cases the interim order does most of the work.

In one line

Parliament may send disputes to a tribunal, but it may not send them beyond the reach of the High Court.

In the wording a student can write in an exam: L. Chandra Kumar v. Union of India held that the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is an integral and essential feature of the Constitution and part of its basic structure, so clause (2)(d) of Article 323A, clause (3)(d) of Article 323B and section 28 of the Administrative Tribunals Act 1985 are unconstitutional to the extent that they exclude that jurisdiction.

The problem the case had to solve

Two propositions had to be reconciled. Tribunals are constitutionally permitted, indeed expressly provided for. And judicial review by the constitutional courts is a basic feature. If a tribunal replaces the High Court, the second proposition is violated; if the High Court sits over every tribunal, the first is emptied of much of its point. The answer the Court gave is the shape of Indian administrative adjudication today.

Stage one: the compromise that failed

S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386.

Facts. Article 323A(2)(d) 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 excluded the High Courts and, as first enacted, the Supreme Court under Article 32 as well. The Act was challenged as destroying judicial review.

Held. Judicial review is a basic feature, but it is not destroyed if the jurisdiction of the High Court is transferred to another body which is an effective and efficacious institutional substitute. The Act was upheld subject to changes. The office of Chairman is for practical purposes the equivalent of the Chief Justice of a High Court, so judicial discipline generated by experience and training is a necessary qualification, and the Chairman must be or have been a High Court judge or have held office as Vice-Chairman for at least two years. A person who had merely been a Secretary to Government, with no legal or judicial experience, would not inspire public confidence and would make the Tribunal much less effective. Appointments were to be made in consultation with the Chief Justice of India.

Why it matters here. It is the compromise: the High Court may be replaced by something as good. Ten years of experience showed that it had not been.

Stage two: the compromise abandoned

L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

Facts. After a decade the tribunals were not functioning as effective substitutes: appointments, infrastructure and the quality of adjudication had all been criticised, and a seven-judge bench was constituted to reconsider Sampath Kumar and to decide the validity of Article 323A(2)(d), Article 323B(3)(d) and section 28.

In one line

There are only about a dozen ways of attacking an administrative decision, and every one of them is a variation on three ideas: no power, unfair procedure, or an unreasonable result.

In the wording a student can write in an exam: the grounds of judicial review of administrative action may be classified under illegality, which includes want of jurisdiction, ultra vires and every abuse of discretion; procedural impropriety, which includes breach of natural justice and of mandatory statutory procedure; and irrationality, which includes Wednesbury unreasonableness and, in India, arbitrariness under Article 14 and disproportionality where a fundamental right is affected.

MU's question

This is the most frequently set essay in Module II. The University asks for the grounds of judicial review, sometimes generally, sometimes over administrative discretion, and sometimes through a quotation. The examiner is looking for a map first and detail afterwards, so the map is here and the detail is in the twenty chapters that follow.

The map

A. Illegality, or the decision-maker misunderstood the law that regulates his power

1. Want or excess of jurisdiction, including a wrong decision on a jurisdictional fact.
2. Substantive ultra vires: the act is outside the power conferred.
3. Procedural ultra vires: a mandatory procedural condition was not observed.
4. Abuse of discretion, which subdivides into:

• mala fides, that is malice in fact or in law;
• improper purpose and colourable exercise;
• irrelevant considerations, and ignoring relevant ones;
• non-application of mind;
• acting under dictation;
• fettering the discretion by a self-imposed rule;
• unlawful sub-delegation of the discretion.

1. Error of law, including an error apparent on the face of the record.
2. Violation of a fundamental right, which in India is a ground in its own right.

B. Procedural impropriety, or the decision-maker did not follow a fair procedure

1. Breach of the rule against bias.
2. Breach of the right to a fair hearing, including notice, disclosure, evidence and reasons.
3. Breach of a legitimate expectation of consultation or of a hearing.
4. Failure to observe a mandatory statutory procedure.

C. Irrationality, or the decision itself cannot be justified

1. Wednesbury unreasonableness.
2. Arbitrariness under Article 14.
3. Disproportionality, where a fundamental right or a punishment is in issue.
4. Failure to give reasons, which sits between B and C because an unreasoned order cannot be shown to be rational.

Where the classification comes from

Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374, worked in [Illegality, Irrationality and Procedural Impropriety], where Lord Diplock grouped the grounds under illegality, irrationality and procedural impropriety and said that proportionality might be added in future. Indian courts use the same three heads and have added the fourth.

What is different about the Indian list

Article 14 does work no English ground does. Since E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, arbitrariness is unconstitutional, so a great deal of what an English lawyer would have to squeeze into Wednesbury is in India a direct constitutional violation.

In one line

Lord Diplock reduced two centuries of administrative law to three words, and every syllabus in the common law world has used them since.

In the wording a student can write in an exam: in Council of Civil Service Unions v Minister for the Civil Service, Lord Diplock classified the grounds on which administrative action is subject to control by judicial review under three heads, illegality, irrationality and procedural impropriety, and said that further development might add proportionality, which is recognised in the administrative law of several European countries.

The case

Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374.

Facts. Government Communications Headquarters at Cheltenham handles signals intelligence and secures official communications. Since 1947 its staff had been permitted and encouraged to belong to national trade unions, and there was a well established practice of consultation about important changes in conditions of service. On 25 January 1984 the Foreign Secretary announced that new conditions had been introduced with immediate effect, under an oral instruction given on 22 December 1983 by the Minister for the Civil Service under article 4 of the Civil Service Order in Council 1982, by which staff could no longer belong to national unions. There had been no consultation at all. The unions sought judicial review.

Held. A decision is not immune from review merely because the power to make it comes from the prerogative rather than from a statute; what matters is the subject matter. Lord Diplock classified the grounds under three heads. By illegality he meant that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it, and whether he has is a justiciable question for the judges. By irrationality he meant what can now be succinctly referred to as Wednesbury unreasonableness: a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it. He called the third head procedural impropriety rather than failure to observe natural justice because it covers also a failure to observe procedural rules expressly laid down in the instrument conferring jurisdiction, even where that failure involves no denial of natural justice.

Held on the fourth ground and on the facts. Lord Diplock added that further development on a case by case basis might add further grounds, having in mind particularly the possible adoption of the principle of proportionality recognised in the administrative law of several fellow members of the European Economic Community. On the facts the unions would have had a legitimate expectation of consultation, but the Government produced evidence that consultation would itself have risked the disruption it was intended to avoid, and the requirements of national security are for the Government and not the courts to judge, so the appeal failed.

In one line

Ultra vires means beyond the powers, and it is the reason a court can set aside anything the administration does.

In the wording a student can write in an exam: the doctrine of ultra vires holds that an authority created by law has only the powers that law confers, expressly or by necessary implication, and that any act beyond those powers is void; it is described as the foundation of judicial review because every other ground can be expressed as a form of it.

MU's question

Set as a whole question in 2016, to explain the doctrine as one of the grounds of judicial review with case law, and as a lettered short note on the most recent paper. So the answer needs the idea, the two branches, the extension of the doctrine to abuse of discretion, its criticisms, and cases.

Why the law has this at all

Because a public authority is not a person with general capacity. A human being may do anything the law does not forbid. A statutory authority may do only what the law permits, because it exists only by force of the statute and has no life outside it. That is the whole doctrine, and everything else is a working out of it.

The same reasoning applies to delegated legislation, which is why Module IV is largely an application of ultra vires: a rule-maker has only the power his parent Act gave him.

The two branches

Substantive ultra vires. The content of the act is beyond the power. An authority empowered to license eating houses purports to license cinemas; an authority empowered to fine up to five thousand rupees fines ten thousand; a rule-making power to prescribe forms is used to create an offence.

Procedural ultra vires. The content is within the power but a mandatory procedural condition was not observed. The statute required a notice, a consultation, a publication or a hearing, and it was not given. Whether the condition is mandatory or merely directory decides whether the act falls, and that is worked in [Substantive and Procedural Ultra Vires].

The extension: abuse of discretion as ultra vires

The doctrine started as a test of the four corners of the power. It grew, because a power exercised for a purpose the statute never contemplated, or on considerations it never contemplated, is in substance a power that was never given. So the courts brought inside ultra vires everything now catalogued as abuse of discretion: improper purpose, irrelevant considerations, mala fides, non-application of mind, acting under dictation, fettering, and unreasonableness.

That extension is what makes it possible to say that ultra vires is the foundation of judicial review. It is also what makes the doctrine hard to state briefly, because on the wide view almost every ground is ultra vires.

In one line

Substantive ultra vires is doing the wrong thing; procedural ultra vires is doing the right thing the wrong way.

In the wording a student can write in an exam: an act is substantively ultra vires where its content falls outside the power conferred by the enabling law, and procedurally ultra vires where the content is within the power but a procedural condition prescribed by that law and mandatory in character has not been complied with.

Substantive ultra vires: the four ways it happens

One, the subject matter is outside the power. The clearest case, and Kunj Behari Lal Butail in [The Doctrine of Ultra Vires] is the example.

Two, the act exceeds a limit fixed by the statute. A penalty above the maximum; a period of detention beyond the permitted term; a levy above the prescribed rate.

Three, the act conflicts with the parent Act. A rule which contradicts a section is void, because a delegate cannot amend his own enabling law unless the Act says he may, which is the Henry VIII problem in [The Henry VIII Clause].

Four, the act conflicts with the Constitution. A rule is law under Article 13(3)(a), so it dies if it offends Part III.

Procedural ultra vires: the mandatory and directory question

A statute prescribes conditions of two kinds. Some are essential to the validity of what is done; others are directions for the orderly conduct of business. Breach of the first destroys the act; breach of the second does not.

There is no formula, and the courts decide by construction, looking at four things.

The words used. Shall is not conclusive but is a strong indication; may is weaker.

The purpose of the requirement. A requirement designed to protect the person affected is usually mandatory. A requirement designed for administrative convenience is usually directory.

The consequence of holding it mandatory. If a great many past transactions would be upset, the court leans towards directory.

Whether the statute itself prescribes a consequence for non-compliance. If it does, that is a strong indication.

Three requirements that are almost always mandatory

Notice to the person affected. Because the whole point is his protection.

Consultation where the Act requires it before a rule is made. Because the rule affects those consulted.

Publication of a rule. Harla v. State of Rajasthan, AIR 1951 SC 467, holds that natural justice requires a law to be promulgated or published before it becomes operative, and that a law of which the public can have no knowledge is not law at all. The point is worked in [Publication as a Condition of Validity].

Two that are often directory

A time limit for an internal step, where the statute prescribes no consequence.

In one line

Discretion is the freedom an official has to choose, and administrative law exists because that freedom cannot be unlimited and cannot be abolished.

In the wording a student can write in an exam: administrative discretion is the power conferred on an administrative authority to choose between courses of action, or between action and inaction, according to its own judgment of the circumstances; it is inevitable in a modern State because a legislature cannot foresee every case, and it is controlled rather than abolished, at the stage of its conferment and at the stage of its exercise.

MU's question

The University asks, on one paper, what is meant by administrative discretion and then for the various grounds of judicial review over it; on another, that administrative discretion is considered a necessity of the hour and asks for the grounds with recent judicial trends. This chapter answers the first half of each; the grounds are the twenty chapters that follow.

Why discretion is unavoidable

The legislature cannot foresee every case. A rule that fits every situation would have to be either so detailed that it becomes unmanageable or so general that it decides nothing.

Individual justice requires it. Two applicants for a licence are never identical, and a rule that treats them identically will be unjust to one of them.

Circumstances change faster than statutes. A power to act as the situation requires is the only way of dealing with an epidemic, a shortage or a strike.

Expertise lives in the administration. Whether a bridge is safe, whether a drug should be licensed, whether a route needs another bus, are questions the legislature cannot answer.

Why discretion is dangerous

It can be exercised for the wrong reason, and the reason is often invisible.

It can be exercised unequally, which in India is a constitutional wrong: E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, holds that equality is antithetic to arbitrariness and that an arbitrary act is unequal and violates Article 14.

It can be exercised by a person the statute did not choose.

It can be exercised on no material at all: S.R. Venkataraman v. Union of India, AIR 1979 SC 49.

The two stages of control

Control at the stage of conferment. Before the discretion is used at all, the court can ask whether the statute conferring it is valid. A statute which confers an unguided and uncanalised power on an officer, with no policy and no standard, is liable to be struck down under Article 14, and Air India v. Nergesh Meerza, AIR 1981 SC 1829, is an example: a regulation which left the extension of an air hostess's service entirely to the option of the Managing Director without guidelines was struck down as conferring an unguided and uncanalised power.

In one line

MU's 2018 question asks how far a court may go behind an official's choice, and the honest answer is that the court's reach has grown steadily since 1941.

In the wording a student can write in an exam: the exercise of discretionary powers by state officials is subject to judicial review to the extent that the court may examine whether the power existed, whether the conditions on which it depended were satisfied, whether the authority applied its own mind to relevant material, whether it acted for the purpose for which the power was given, and whether the result is one no reasonable authority could have reached.

MU's question

Set as a whole twenty-five mark question: critically analyse the extent to which the exercise of discretionary powers by state officials may be subject to judicial review in the light of the decisions in Liversidge v. Anderson, [1942] AC 206, and Padfield v. Minister of Agriculture, Fisheries and Food, [1968] AC 997. The University supplied both neutral citations. So the answer must work both cases and must draw the contrast between them, which is the whole point of the pairing.

The two poles

Liversidge is the low point of review. A regulation permitted detention where the Secretary of State had reasonable cause to believe certain things, and the majority read that as meaning his own honest belief, which the court could not examine. The extreme deference and the reasoning are worked in [Liversidge v Anderson and Subjective Satisfaction].

Padfield is the turning point. A Minister claimed an unfettered discretion whether to refer a complaint to a committee of investigation. The House of Lords held that Parliament must have conferred the discretion with the intention that it be used to promote the policy and objects of the Act, and that a Minister who thwarts them can be compelled to act according to law. It is worked in [Padfield: A Discretion Must Serve the Policy and Objects of the Act].

Between the two, everything changed: the burden, the language and the assumption. In 1941 the court asked whether the statute allowed it to look; in 1968 it asked what the statute was for.

What a court examines today

Was there a power at all? Ultra vires.

Were the conditions satisfied? Jurisdictional facts, and where the condition is a subjective satisfaction, whether there was material on which it could be reached: Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295.

Did the authority apply its own mind? Non-application of mind, acting under dictation, fettering by a self-imposed rule.

Was the power used for its purpose? Improper purpose, mala fides, colourable exercise.

Were the right things considered? Relevant and irrelevant considerations, and S.R. Venkataraman v. Union of India, AIR 1979 SC 49, where an order rested on nothing at all.

In one line

The House of Lords read "if the Secretary of State has reasonable cause to believe" as meaning "if he thinks he has", and Lord Atkin said that was Humpty Dumpty's method of construction.

In the wording a student can write in an exam: Liversidge v Anderson held, by majority, that the words "if the Secretary of State has reasonable cause to believe" in Regulation 18B of the Defence (General) Regulations 1939 required only that the Secretary of State should honestly hold the belief, so that the court could not examine the grounds; Lord Atkin dissented, and his dissent is now regarded as correct.

The case

Liversidge v. Anderson, [1942] AC 206, [1941] UKHL 1, decided 3 November 1941.

Facts. Regulation 18B of the Defence (General) Regulations 1939, made under the Emergency Powers (Defence) Act 1939, provided that if the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations, or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts, and that by reason thereof it is necessary to exercise control over him, he may make an order directing that he be detained. Liversidge was detained and sued the Home Secretary for false imprisonment, asking for particulars of the grounds. The Home Secretary declined to give them, saying that his belief was enough.

Held. The majority held that the words meant that the Secretary of State's own honest belief was the condition of the power, so the court could not examine the grounds on which it was formed, and the action failed. Lord Atkin dissented. He said that he viewed with apprehension the attitude of judges who, on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive minded than the executive; that in this country, amid the clash of arms, the laws are not silent, and although they may be changed they speak the same language in war as in peace; that it has always been one of the pillars of freedom that judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive; and that he had listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I. He said the only authority he knew for the majority's method of construction was Humpty Dumpty's, that a word means just what the speaker chooses it to mean, and that the question was whether the words "if a man has" can mean "if a man thinks he has", which in his opinion they cannot.

In one line

Indian courts have never accepted that "if the authority is satisfied" means "if the authority says so".

In the wording a student can write in an exam: where a statute makes the satisfaction or opinion of an authority the condition of a power, Indian courts hold that the formation of the opinion is subjective but that the existence of the circumstances on which it is founded is a condition precedent whose existence and relevance are open to judicial review, so that an opinion resting on no material, or on material that cannot rationally support it, is bad.

The two leading cases

Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295.

Facts. Section 237(b) of the Companies Act 1956 allowed an investigation into a company's affairs to be ordered if, in the opinion of the Central Government or the Company Law Board, there were circumstances suggesting that the business was being conducted to defraud creditors or members, or that the management was guilty of fraud or misfeasance. The Board's Chairman, acting alone under a distribution of business made under rules, appointed four inspectors to investigate the appellant company. The order recited the statutory formula, and the affidavit disclosed no material from which the circumstances could be inferred.

Held. The order was quashed. Although the formation of an opinion is subjective, the existence of circumstances suggesting the things named in the section is a condition precedent, and the existence of those circumstances is open to judicial review. If it is shown that the circumstances do not exist, or that they cannot rationally support the opinion, the order is bad. The satisfaction must be that of a reasonable authority on relevant material and cannot be a mere assertion.

Why it matters here. It is the Indian answer to Liversidge, and it is the case an examiner expects when the words in the opinion of appear in a problem.

Rohtas Industries Ltd. v. S.D. Agarwal, AIR 1969 SC 707.

Facts. An investigation into the affairs of a company controlled by a particular businessman led the Central Government to order an investigation under section 237(b)(i) and (ii) into the appellant company as well, in relation to its sale of preference shares in another company. The material placed before the Court did not establish the circumstances the section requires.

Held. The order was set aside. Sections 235 to 237 form a scheme, and an investigation under section 237 takes its colour from them: it is a serious step, likely to receive publicity and to damage a company's reputation and prospects, and should not be ordered except on good grounds. The formation of the opinion is subjective, but the existence of circumstances suggesting the statutory grounds is a condition precedent whose existence can be examined, and the circumstances relied on could not rationally support the opinion.

In one line

There is no such thing as an unfettered statutory discretion, because Parliament gave the power for a purpose and the courts decide what that purpose was.

In the wording a student can write in an exam: Padfield v Minister of Agriculture, Fisheries and Food held that Parliament must have conferred a discretion with the intention that it should be used to promote the policy and objects of the Act; that the policy and objects are determined by construing the Act as a whole and construction is always a matter of law for the court; and that if the Minister so uses his discretion as to thwart or run counter to that policy, the court may intervene.

The case

Padfield v. Minister of Agriculture, Fisheries and Food, [1968] AC 997, [1968] UKHL 1, decided 14 February 1968.

Facts. Under the Milk Marketing Scheme made under the Agricultural Marketing Act 1958, producers had to sell their milk to the Milk Marketing Board, which fixed a different price for each of eleven regions, the differences reflecting the cost of transporting milk to centres of consumption. The differentials had been fixed many years earlier when transport was cheaper. South Eastern producers had pressed the Board for years to increase them and had failed, the Board acting by a majority in which they were outnumbered. Section 19(3)(b) of the Act allowed the Minister to refer a complaint about the operation of a scheme to a Committee of Investigation. In January 1965 the South Eastern producers made a formal complaint and asked that it be referred. The Minister refused, writing that under the Act he had an unfettered discretion whether to refer a particular complaint, and giving reasons which included the political difficulty that would follow a report in the complainants' favour.

Held. An order of mandamus went, requiring the Minister to consider the complaint according to law, and the case was remitted to the Queen's Bench Division. Lord Reid held that Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; that the policy and objects must be determined by construing the Act as a whole, and construction is always a matter of law for the court; and that if the Minister, by reason of having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, the law would be very defective if persons aggrieved were without a remedy. He rejected the argument that the only two possibilities were a duty to refer every complaint or an unfettered discretion to refuse. Lord Morris of Borth-y-Gest dissented.

In one line

Mala fides means bad faith, and Indian law recognises two kinds of it: the dishonest kind, which almost nobody can prove, and the legal kind, which needs no dishonesty at all.

In the wording a student can write in an exam: mala fides in administrative law means the exercise of a power dishonestly or for an improper motive, called malice in fact, or the doing of a wrongful act intentionally without just cause or excuse, called malice in law; the first requires proof of a bad motive, the second is inferred from the act itself and is established where the order rests on no material or on considerations foreign to the power.

MU's question

The University prints the head as "Malafide and Bias", pairing the two. This chapter takes mala fides; bias is taken in [Bias as a Ground of Review] and worked in Module III.

Malice in fact

An order made out of personal spite, to settle a score, to favour a relative, or for a corrupt consideration. It is the most serious allegation in administrative law and the hardest to prove, for three reasons.

The evidence is inside the administration. A petitioner rarely has the file.

Courts require particulars. A general allegation of mala fides is disregarded, and the person alleged to have acted maliciously must be made a party so that he can answer.

The presumption of regularity. Official acts are presumed to have been regularly performed until the contrary is shown.

Malice in law

S.R. Venkataraman v. Union of India, AIR 1979 SC 49.

Facts. The appellant, a Joint Director of Family Planning in the Directorate General of All India Radio, was prematurely retired in the public interest under Fundamental Rule 56(j)(i). She alleged a clean record of nearly three decades and a vendetta by an official of another body. Her writ petition was dismissed in limine. On appeal the Union conceded that there was nothing on the record to justify the order and that it could not support it.

Held. The order was quashed. There was nothing to show that the official named had been able to influence the Government, so this was not a case of actual malicious intention and therefore not malice in fact. But malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally, without just cause or excuse, or for want of reasonable or probable cause. Where an authority makes an order in purported exercise of a power and there is no material at all on which it could have been made, the order is an abuse of power and is bad.

Why it matters here. It is the case that makes mala fides usable. A petitioner who cannot prove a bad motive can still succeed by showing that the order rests on nothing, and the concession by the Union in that case is the model of what such a record looks like.

In one line

A power given for one purpose and used for another is void, and nobody has to be dishonest for that to be true.

In the wording a student can write in an exam: improper purpose, also called the doctrine of extraneous purpose or detournement de pouvoir, means the use of a statutory power for an object other than that for which it was conferred; a colourable exercise of power is the use of a power which is apparently within the authority's competence but which in substance achieves something the authority could not do directly.

Why this is the most useful ground in the group

Because it does the work of mala fides without the burden of proving dishonesty. A court which will not say that an officer acted corruptly will readily say that a power to acquire land for a public purpose was used to acquire a particular man's land because of a dispute with him. The finding is about the object, not about the state of mind.

How the purpose is found

From the statute. The preamble, the long title, the scheme and the section itself. This is Lord Reid's method in Padfield v. Minister of Agriculture, Fisheries and Food, [1968] AC 997: the policy and objects of the Act are found by construing the Act as a whole, and construction is a matter of law for the court.

From the order and the file. The reason recorded, the note sheet, the sequence of events.

From the effect. Where the effect of the order is to achieve something the Act does not contemplate, and no other explanation is offered.

Mixed purposes

An order is often made for two purposes, one proper and one not. The courts have used several tests, and the one most often applied is the dominant purpose test: if the improper purpose was the dominant one, or if the order would not have been made but for it, the order falls. Where the proper purpose alone would have produced the same order, it stands.

Colourable exercise

The phrase means that the power is exercised in a form which appears lawful but which in substance is a device. The doctrine is expressed in the maxim that what cannot be done directly cannot be done indirectly. In Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308, the Court considered the argument of colourable legislation and said that the question is in substance one of legislative competence, and that a legislature cannot overstep the field of its competence directly or indirectly; while if it has the power to make the law, its motive in making it is irrelevant.

That last sentence is the key distinction for an answer: motive is irrelevant to legislation but relevant to administration, because an administrative power has a stated purpose and a legislative power does not.

In one line

An authority must think about what the statute tells it to think about, and about nothing else.

In the wording a student can write in an exam: a discretionary decision is bad if the authority took into account a consideration which the statute, expressly or by implication, required it to exclude, or failed to take into account a consideration which the statute required it to consider; and the decision falls whether or not the authority acted dishonestly.

Where the ground comes from

From the same source as the rest of Module II: the power was given for a purpose, and the considerations which are relevant to it are fixed by the statute. Lord Greene stated it as part of the meaning of unreasonable in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 KB 223: a person entrusted with a discretion must direct himself properly in law, must call his own attention to the matters he is bound to consider, and must exclude from consideration matters which are irrelevant to what he has to consider. Lord Reid put the same idea in terms of the policy and objects of the Act in Padfield v. Minister of Agriculture, Fisheries and Food, [1968] AC 997.

The three forms it takes

One, taking account of the irrelevant. The authority relied on something the statute excludes. A licensing authority which refuses a licence because the applicant belongs to a particular community, or because he sued the corporation last year.

Two, failing to take account of the relevant. The authority ignored something the statute requires it to weigh. A transport authority which never considered the needs of the travelling public, when the section names them.

Three, acting on no material at all, which is the extreme case and is treated as malice in law: S.R. Venkataraman v. Union of India, AIR 1979 SC 49, where the Union conceded that there was nothing on the record to justify the order of premature retirement, and the Court held that where an authority makes an order with no material at all on which it could have been made, the order is an abuse of power and is bad, whether or not any actual malicious intention is shown.

How the court decides what is relevant

Expressly stated factors. Where the section lists them, the list is the answer, and the words "having regard to" make consideration compulsory.

Implied factors. Where the section is silent, the court reads the scheme and object of the Act. This is where the argument usually is.

Weight is for the authority. Once a consideration is relevant, how much weight it carries is not for the court, unless the weight given is so absurd that the decision becomes irrational.

In one line

An authority must actually decide, and an order which shows that nobody thought about the case is void.

In the wording a student can write in an exam: non-application of mind is the failure of an authority to bring its own judgment to bear on the material before it, shown by a mechanical or stereotyped order, by reliance on somebody else's satisfaction, by an order made on a printed form without particulars, or by the absence of any consideration of the facts of the individual case.

Why it is a separate ground

Because a discretion is a duty to decide, not a permission to sign. The statute chose a particular authority because it wanted that authority's judgment. An order which reproduces the statutory language and nothing else shows that the judgment was never brought to bear, and the defect is complete even if the same order could lawfully have been made after proper consideration.

How it is shown

A stereotyped or cyclostyled order. The same words for every case, with only the name changed.

A recital of the statutory formula and nothing else. The authority is satisfied that it is necessary, without a hint of what made it necessary.

Borrowed satisfaction. The order records the satisfaction of a different officer, or is made because a superior directed it, which shades into acting under dictation.

An order made before the material existed. A cancellation dated before the inspection report.

Failure to consider the reply. A show cause notice is issued, a reply is filed, and the final order does not deal with it.

An impossible timetable. Sixty files disposed of on one day with individual reasons in each, or an order passed the day the notice was served.

The link with reasons

An unreasoned order is not automatically an order made without application of mind, but it makes the defect impossible to disprove. That is why S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, matters here as well as in [Failure to Give Reasons: The Reasoned Decision]: it holds that an administrative authority exercising quasi-judicial functions must record reasons which are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy.

The link with material is equally close. An authority which had no material could not have applied its mind to any, which is S.R. Venkataraman v. Union of India, AIR 1979 SC 49.

The evidence of it in a modern case

Canara Bank v. V.K. Awasthy, AIR 2005 SC 2090, arose out of a departmental dismissal in which the High Court held that the punishment order had been passed without proper application of mind to the findings recorded by the disciplinary authority on the enquiry officer's report and to the punishment imposed, and permitted a fresh representation and a fresh order. On appeal the Supreme Court restated the principles of natural justice and held that the test in such cases is whether prejudice has in fact been caused, so that an order will not be set aside merely because the opportunity could have been fuller. The case is useful for both propositions: non-application of mind is a real ground, and it is tested by asking whether the defect made a difference.

In one line

The authority the statute named must decide, and an authority that takes orders from somebody else has not decided at all.

In the wording a student can write in an exam: acting under dictation is the exercise of a discretion at the direction of another person or body, so that the authority in whom the statute vested the power does not itself decide; the resulting order is void, because the statute conferred the power on that authority and on no other.

Why it is a distinct ground

Because the vice is different from the others in this group. In improper purpose the authority decided for the wrong reason; in irrelevant considerations it decided on the wrong material; here it did not decide. The order may be entirely sensible and still void.

The three situations

One, an express direction. A superior instructs the authority what order to pass, and it passes it. The file usually shows this.

Two, a general instruction that removes the discretion. A department circular tells all licensing officers to refuse every application of a class. Each officer then has no discretion left, though the statute gave him one.

Three, a deferred decision. The authority refers the matter to another body and adopts its conclusion without examining it.

What is lawful, and the line

Consultation is lawful. An authority may take advice from anybody, including a superior, so long as it makes the decision itself.

A policy is lawful. An authority may adopt a policy and apply it, provided it remains willing to consider an exceptional case, which is [Fettering a Discretion by a Self-Imposed Rule].

A statutory direction is lawful. Where the Act itself provides that the authority shall be guided by directions of the Government, obedience is not dictation; but such a provision is construed narrowly, and a direction which decides an individual case rather than laying down policy is usually outside it.

Approval or sanction is lawful. Where the Act requires an order to be approved by a higher authority, that is a statutory scheme and not dictation.

The line, in one sentence: advice which the authority is free to reject is lawful; an instruction which it treats as binding is not.

The Indian illustration

The clearest Indian illustration is in the natural justice line rather than in a separate line of dictation cases: Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308, where the Secretary heard the objections to a nationalisation scheme and the Chief Minister decided them. The Court set the approval aside, holding that where a statute requires a hearing before a decision, the authority that hears must be the authority that decides, and divided responsibility vitiates the exercise.

In one line

An authority may have a policy, but it may not have a policy so rigid that it never looks at the case in front of it.

In the wording a student can write in an exam: an authority which has been given a discretion must keep it, and may not disable itself from exercising it in an individual case; it may adopt a general policy to guide the exercise of the discretion, provided the policy is consistent with the statute, is not applied mechanically, and the authority remains willing to consider an exceptional case on its merits.

Why a policy is lawful

Because the alternative is worse. An authority deciding a thousand applications a year without any policy would be arbitrary, inconsistent and slow, and the applicants would have no idea what to expect. Consistency is a virtue in administration, and a published policy also creates a legitimate expectation, which protects the citizen.

Why a rigid policy is unlawful

Because the statute gave the authority a discretion in each case, and a policy applied without exception converts the discretion into a rule the authority was never empowered to make. In substance the authority has legislated, without the power to legislate.

The forms of fettering

A rigid policy. No exceptions, ever.

A contract. An authority which binds itself by contract not to exercise a statutory power in a particular way has fettered itself, and the contract does not prevent the exercise.

A representation or an undertaking, which raises the difficult overlap with legitimate expectation and promissory estoppel dealt with in [Legitimate Expectation in India: Procedural and Substantive].

Delegation of the discretion, which is [Unlawful Sub-Delegation of a Discretion].

The rule in three propositions

1. The authority may adopt a policy to guide the exercise of a discretion.
2. The policy must be consistent with the statute, so a policy which pursues an object the Act does not contemplate is bad as an improper purpose.
3. The authority must keep its ears open. It must be willing to listen to anybody with something new to say, and to depart from the policy in a proper case.

The Indian setting

Two Indian doctrines carry most of the weight here.

Article 14. Applying a policy mechanically to cases which are materially different is unequal treatment, and E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, makes arbitrariness a violation.

Legitimate expectation. A published policy binds the authority to consider it, and departing from it without reason is arbitrary: State of Jharkhand v. Brahmputra Metallics Ltd., decided on 1 December 2020, holds that a State which makes a representation in a published policy is bound by the doctrine of legitimate expectation, that the doctrine rests on fairness in government dealing, and that a failure to act on its own policy without reasonable justification is arbitrary and violates Article 14.

In one line

A power given to one authority must be exercised by that authority, and passing it to somebody else is void unless the statute allows it.

In the wording a student can write in an exam: the maxim delegatus non potest delegare means that a person to whom a power has been delegated cannot delegate it further; a discretion conferred by statute on a named authority must be exercised by that authority, and a sub-delegation is valid only where the statute permits it expressly or by necessary implication.

Why the rule exists

Because the choice of authority is part of what the legislature decided. When a statute says the Collector may order a demolition, it has chosen a district officer of a particular seniority, with particular training and a particular accountability. If the Collector may pass the power to a clerk, the legislature's choice is defeated.

What counts as sub-delegation

Handing the decision to another officer. The clearest case.

Signing what another officer has decided. The form is preserved and the substance is not, which is also non-application of mind and acting under dictation.

Delegating the enquiry so that the decision is taken by a person who has not heard. This is the Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308, situation from the other direction.

Sub-delegating rule-making power, which is a different problem and belongs to Module IV: [Sub-Delegation of Rule-Making Power].

When sub-delegation is lawful

Where the statute says so. Many Acts allow an authority to authorise an officer to exercise its powers, and the delegation must then follow the form the Act prescribes.

Where it arises by necessary implication. A power conferred on a Government is ordinarily exercisable through officers under the Rules of Business, because a Government is not a person and can act only through officers. That is the effect of Articles 77 and 166.

Where the function is ministerial rather than a discretion. Preparing a draft, serving a notice or collecting information may be done by subordinates; deciding may not.

Where the sub-delegation is of the enquiry alone and the decision is taken by the authority itself on the material, provided the person affected is given the material, which is what Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074, requires when it holds that the enquiry officer's report must be furnished to the employee before the disciplinary authority decides.

The Indian tests

The court asks three questions. Does the Act permit the sub-delegation, expressly or impliedly? If so, was the prescribed form followed? And did the sub-delegate exercise the power himself, or did the original authority in fact decide?

In one line

A decision can be set aside for being unreasonable, but only if it is so unreasonable that no reasonable authority could ever have made it.

In the wording a student can write in an exam: the Wednesbury principle is that a court may interfere with a discretionary decision on the ground of unreasonableness only where the decision is so unreasonable that no reasonable authority could ever have come to it; a decision is not unreasonable merely because the court would have decided differently, and to prove such a case would require something overwhelming.

MU's own words

The University prints the head as "Oppressing decision", which is not a term of art. It means an oppressive or unreasonable decision, and it is answered by the Wednesbury principle and, in India, by arbitrariness under Article 14. An answer should say so in the first line and then set out the law.

The case

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 KB 223, [1947] EWCA Civ 1, decided 10 November 1947.

Facts. The Sunday Entertainments Act 1932 legalised the opening of cinemas on Sundays subject to such conditions as the licensing authority thought fit to impose. Wednesbury Corporation granted a Sunday licence to the plaintiffs' cinema on the condition that no children under the age of fifteen years should be admitted to any Sunday entertainment, whether accompanied by an adult or not. The company sued for a declaration that the condition was ultra vires, arguing that it was unreasonable and that it should at least have been confined to unaccompanied children.

Held. The condition was valid and the action was dismissed. Lord Greene MR separated the senses of unreasonable. A person entrusted with a discretion must direct himself properly in law, must call his own attention to the matters he is bound to consider, and must exclude from consideration matters irrelevant to what he has to consider; disobeying those rules is often described as acting unreasonably. Beyond that, a decision on a matter the authority was entitled to consider can be upset only if it is so unreasonable that no reasonable authority could ever have come to it, and to prove such a case would require something overwhelming. It is not what the court considers unreasonable, which is a different thing altogether. The physical and moral welfare of children is plainly a matter a licensing authority is entitled to consider.

Why it matters here. It gives the standard its name, it sets the threshold deliberately high, and its first half is the source of the grounds of relevant and irrelevant considerations.

The two senses of unreasonable, which an answer must separate

The umbrella sense. Unreasonable as a general description of everything an authority must not do: misdirecting itself in law, ignoring the relevant, considering the irrelevant, acting in bad faith. Lord Greene said all these things run into one another.

In one line

Proportionality asks whether the administration used a sledgehammer to crack a nut, and it lets a court say so.

In the wording a student can write in an exam: the doctrine of proportionality requires that a measure limiting a right must pursue a legitimate purpose, must be rationally connected to that purpose, must be no more restrictive than necessary to achieve it, and must strike a proper balance between the importance of the purpose and the extent of the limitation; it permits a closer scrutiny of the substance of a decision than Wednesbury unreasonableness does.

MU's question

Set as a lettered short note on the most recent paper, and as "Absence of proportionality" on the 2015 paper, where it was one of three grounds of judicial review the University asked candidates to explain with judicial decisions.

Why the doctrine exists

Because Wednesbury is nearly useless where a right is at stake. A decision to ban a procession may be perfectly rational, supported by material, and taken for a proper purpose, and still destroy a fundamental freedom when a lesser measure would have done. Wednesbury asks whether the decision is absurd; proportionality asks whether the interference was necessary. The second question is the one the citizen actually wants asked.

The four steps

One, legitimate purpose. The measure must be designated for a proper purpose.

Two, rational connection. The measures adopted must be rationally connected to the fulfilment of that purpose.

Three, necessity. The measures must be necessary, in that there are no alternative measures that may similarly achieve the same purpose with a lesser degree of limitation.

Four, balancing. There must be a proper relation between the importance of achieving the purpose and the social importance of preventing the limitation, which is proportionality in the strict sense.

Those four are stated in that form in Modern Dental College and Research Centre v. State of Madhya Pradesh, decided on 2 May 2016.

Facts. A State law regulated admissions and fees in private unaided professional educational institutions, providing for a common entrance test and a fee fixation committee. The institutions challenged it as an unreasonable restriction on their right to carry on the occupation of education.

Held. The law was upheld, and the Court adopted the four-part test: a limitation of a constitutional right is permissible if it is designated for a proper purpose; if the measures undertaken to effectuate the limitation are rationally connected to the fulfilment of that purpose; if the measures are necessary, in that there are no alternative measures that may similarly achieve the same purpose with a lesser degree of limitation; and finally if there is a proper relation between the importance of achieving the purpose and the social importance of preventing the limitation.

In one line

Indian courts apply proportionality closely where a fundamental right is limited, and keep a light Wednesbury touch where the question is how severely an employee should be punished.

In the wording a student can write in an exam: Indian law applies proportionality as a primary standard of review where a fundamental right is limited, requiring the State to justify the limitation by the four-part test, and applies a secondary Wednesbury standard where the complaint is about the quantum of a punishment or about an ordinary administrative choice, interfering only where the penalty is shockingly disproportionate.

The two levels

Primary review, for fundamental rights. Where a statute, rule or order limits a right in Part III, the court itself decides whether the limitation is justified, and the State bears the burden. The test is the four steps in Modern Dental College and Research Centre v. State of Madhya Pradesh, decided on 2 May 2016, and the same structure appears in Justice K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161.

Facts of Puttaswamy. A nine-judge bench was constituted to decide whether the Constitution guarantees a fundamental right to privacy, earlier decisions of larger benches having held that it did not.

Held. Privacy is a constitutionally protected right emerging primarily from Article 21 and from the freedoms in Part III. A law which invades privacy must satisfy a three-fold requirement: legality, which postulates the existence of law; need, defined in terms of a legitimate State aim; and proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them. The earlier decisions to the contrary were overruled.

Why it matters here. It makes proportionality the standard test for any State action limiting a fundamental right, and it supplies the three-fold formula that is now quoted in every such case.

Secondary review, for punishment and ordinary administrative choices. Here the court does not weigh the measure itself. It asks whether the decision is one a reasonable authority could have reached, and it interferes with a penalty only where the penalty is so disproportionate to the misconduct as to shock the conscience.

Why the two levels exist

Because the reason for review is different. Where a fundamental right is limited, the Constitution itself demands justification, and Articles 19(2) to (6) and 21 give the court a textual mandate. Where an employer chooses between dismissal and stoppage of increments, no constitutional right is engaged; the choice belongs to the disciplinary authority, and a court that re-fixed penalties would be running the service.

The service cases

The rule in practice is that a court will not substitute a penalty. Where the punishment is grossly excessive it sets the punishment aside and remits the matter to the disciplinary authority to reconsider, and only in a rare case does it substitute a lesser penalty itself to avoid prolonging the litigation.

In one line

In India an administrative act can be struck down simply because it breaks a fundamental right, and no other ground is needed.

In the wording a student can write in an exam: violation of a fundamental right is an independent ground of judicial review in India, because Article 13(2) forbids the State to make any law taking away or abridging the rights conferred by Part III and Article 13(3)(a) defines law to include any order, rule, regulation, notification or bye-law having the force of law; administrative action which infringes Articles 14, 19 or 21 is therefore void without the need to show any other defect.

MU's question

Set as a short note on two papers, in identical words: violation of fundamental rights as a ground of judicial review. So the answer needs the constitutional foundation, the three articles that do most of the work, an example of each, and the qualification in Ujjam Bai.

The constitutional foundation

Article 13(2). The State shall not make any law which takes away or abridges the rights conferred by this Part, and any law made in contravention of this clause shall to the extent of the contravention be void.

Article 13(3)(a). Law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

Those two clauses together are why this ground exists. An executive order which has the force of law is law, and a law that abridges a fundamental right is void, so the order is void.

Article 14: the workhorse

Equality and arbitrariness. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, holds that equality is a dynamic concept which cannot be cribbed, cabined and confined within traditional and doctrinaire limits; that from a positivistic point of view equality is antithetic to arbitrariness; that equality and arbitrariness are sworn enemies; and that where an act is arbitrary it is implicit in it that it is unequal and therefore violative of Article 14.

Discrimination without a rational basis. The classification test: a classification is valid only if it rests on an intelligible differentia and if the differentia has a rational relation to the object of the Act.

Unguided discretion. Air India v. Nergesh Meerza, AIR 1981 SC 1829, struck down a regulation which left the extension of an air hostess's service entirely to the option of the Managing Director without guidelines, as an unguided and uncanalised power offending Article 14, and held termination on first pregnancy to be manifestly unreasonable and arbitrary.

Article 19: the freedoms

Any administrative act restricting speech, assembly, association, movement, residence or trade must satisfy the reasonable restrictions test in clauses (2) to (6), which is a proportionality test. Narendra Kumar v. Union of India, AIR 1960 SC 430, holds that a restriction under Article 19(6) may in an appropriate case amount to a total prohibition, but that the greater the restriction the stronger the justification required.

In one line

MU's quotation is right, and the reason it is right is that a power with no standard will be used differently on different people, which is what discrimination means.

In the wording a student can write in an exam: a statute or rule which confers an absolute or unguided discretion on an authority, without laying down any policy or standard for its exercise, is liable to be struck down under Article 14, because a power that can be exercised differently on identical facts is a power to discriminate; and an exercise of discretion which is arbitrary is for that reason unequal and unconstitutional.

MU's question

The University printed the sentence "Absolute and wide discretion may resulted into discrimination" and asked candidates to discuss the various grounds of judicial review in the light of recent judicial decisions in India. The quotation is the hinge of the answer: it is a proposition about Article 14, and the grounds are the answer to it.

Why the proposition is true

Take a section which says the Collector may grant a licence to such persons as he thinks fit, and says nothing more. Two applicants with identical qualifications apply. The Collector grants one and refuses the other. Nothing in the section has been broken, because the section imposes no standard. Yet two identical persons have been treated differently, which is precisely what Article 14 forbids.

So a power without a standard is a power to discriminate, and the vice is in the conferment and not only in the exercise. That is the sense in which absolute discretion may result in discrimination.

The two-stage answer

Stage one: the conferment. A provision conferring an unguided and uncanalised power is liable to be struck down. Air India v. Nergesh Meerza, AIR 1981 SC 1829, is the standard illustration: a regulation which allowed an air hostess's retirement age to be extended entirely at the option of the Managing Director, with no guidelines, conferred an unguided and uncanalised power and offended Article 14, and termination on first pregnancy was manifestly unreasonable and arbitrary.

The same reasoning strikes down a service regulation permitting termination without reasons and without enquiry: Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101, where a Constitution Bench held that a naked and unguided power to terminate the service of a permanent employee without notice, reasons or enquiry is arbitrary, violates Article 14 and is opposed to public policy under section 23 of the Contract Act, and that such a provision must be read down where it can be and struck down where it cannot.

Stage two: the exercise. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, makes an arbitrary exercise unconstitutional in itself, because equality and arbitrariness are sworn enemies and an arbitrary act is implicitly unequal.

In one line

An error of jurisdiction destroys the power to decide; an error of law is a mistake made while lawfully deciding, and the difference used to decide cases and now decides fewer.

In the wording a student can write in an exam: an error of jurisdiction is one which goes to the authority's power to enter upon or continue the enquiry and makes the decision a nullity; an error of law is a mistake as to the legal rule applied, made within a jurisdiction the authority possessed, and is correctible by certiorari only where it is apparent on the face of the record; since Anisminic the two categories have largely merged, because almost any error of law is now treated as taking the authority outside its jurisdiction.

The old position

Error of jurisdiction. The authority acted over a person, a place or a subject outside its power, or on a jurisdictional fact that did not exist. The decision is a nullity, unprotected by an ouster clause, and may in principle be ignored.

Error of law within jurisdiction. The authority had power and misread the law. The decision is valid until set aside, is protected by a well-drafted ouster clause, and is quashable only if the error appears on the face of the record.

That difference mattered enormously, because it decided whether a finality clause saved the decision.

The merger

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147, worked in [Anisminic and What Became of Ouster Clauses], made the difference much smaller. Lord Reid held that a tribunal may have jurisdiction to enter on an enquiry and yet do something in the course of it which makes its decision a nullity: asking the wrong question, taking into account something it was not entitled to consider, or refusing to take into account something it was required to consider. Since almost every error of law can be described as asking the wrong question, the category of jurisdictional error swallowed most of the other.

Where the distinction still bites in India

Article 32. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621, holds that an authority acting under a valid law and within jurisdiction does not violate a fundamental right by construing the law wrongly, so an error within jurisdiction does not open Article 32.

Finality clauses. A clause protecting a decision made under the Act does not protect a decision made outside it, which is Union of India v. Tarachand Gupta and Bros., AIR 1971 SC 1558.

Certiorari. An error within jurisdiction has to be apparent on the record; a jurisdictional error does not.

Ignoring the order. Only a nullity may in principle be disregarded, and even then at the citizen's risk.

In one line

An authority that decides against somebody must say why, because a decision without reasons cannot be tested and cannot be trusted.

In the wording a student can write in an exam: the requirement to record reasons governs the decisions of an administrative authority exercising quasi-judicial functions, whether or not the decision is subject to appeal, revision or judicial review; the reasons need not be as elaborate as a judgment, but must be clear and explicit so as to indicate that the authority has given due consideration to the points in controversy.

MU's question

The University sets it as part of a whole question: that the rule against bias and the reasoned decision play a significant role in the fair administration of justice in India, to be explained. The bias half is Module III; this is the other half.

Why reasons matter, in four propositions

They discipline the decision-maker. An officer who has to write down why is more likely to think about why.

They enable the affected person to know his case. Without reasons he cannot decide whether to appeal, or on what ground.

They enable review. A court cannot test a conclusion whose basis is hidden; this is the reason the ground exists at all.

They satisfy the appearance of justice. A decision that is explained is a decision that can be accepted, even by the person who loses.

The leading case

S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.

Facts. The appellant, an army officer, was blamed by a court of enquiry over a discrepancy between two contingent bills for the winter liveries of depot chowkidars and sweepers. He was tried by a general court martial, convicted, and the finding and sentence were confirmed. His post-confirmation petition to the Central Government under section 164 of the Army Act 1950 was rejected without reasons, and he contended that the confirming authority and the Central Government were bound to record reasons.

Held. A Constitution Bench held that except where the statute expressly or by necessary implication provides otherwise, the requirement that reasons be recorded governs the decisions of an administrative authority exercising quasi-judicial functions, irrespective of whether the decision is subject to appeal, revision or judicial review. It added that it is not required that the reasons should be as elaborate as in the decision of a court of law, that the extent and nature of the reasons depend on the particular facts and circumstances, and that 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. On the court-martial procedure itself the Court held that the special statutory scheme did not require reasons at the confirmation stage.

In one line

A decision made by somebody who should not have been deciding is void, whether or not it was the wrong decision.

In the wording a student can write in an exam: bias is an operative prejudice, whether conscious or unconscious, in relation to a party or an issue, which disqualifies the person affected by it from adjudicating; as a ground of judicial review it is a species of procedural impropriety, and the test is not whether bias in fact affected the decision but whether a reasonable person would apprehend that it might have.

Why the ground is stated twice in this book

Because MU states it twice. It appears in Module II as half of the head "Malafide and Bias", where it is a ground of judicial review, and again in Module III as the rule against bias, one of the two principles of natural justice. This chapter takes it as a ground and states the essentials; the doctrine is worked in [Nemo Judex in Causa Sua: The Rule Against Bias], [The Kinds of Bias], [The Test for Bias] and [The Doctrine of Necessity], and those chapters are not repeated here.

The essentials, in five lines

The rule. Nemo judex in causa sua, no one should be a judge in his own cause.

The reason. Justice must not only be done but must manifestly be seen to be done, so the appearance matters as much as the fact.

The test. Whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him: Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425.

The kinds. Pecuniary, personal, subject matter, policy and departmental.

The effect. The decision is vitiated, and proof that the decision was correct is no answer.

Bias as a ground, distinguished from mala fides

MU pairs the two, and a good answer separates them.

The extension to administrative bodies

The most important development for this module is that bias is no longer confined to bodies with a duty to act judicially. Kraipak holds that the rule that enquiries must be held in good faith and without bias, and not arbitrarily or unreasonably, is now included among the principles of natural justice, and that those principles apply to administrative proceedings. So a selection board, a tender committee and a departmental promotion committee are all subject to it.

In one line

Natural justice is two rules: do not judge your own cause, and hear the other side.

In the wording a student can write in an exam: the principles of natural justice are nemo judex in causa sua, that no one shall be a judge in his own cause, and audi alteram partem, that no one shall be condemned unheard; they are not embodied rules but standards of fair procedure which supplement the law, and their content varies with the statutory framework, the nature of the enquiry and the consequences of the decision.

MU's printed topic

MU calls the topic "Procedural fairness", which is the modern name. Older writers say natural justice, and English courts now often say the duty to act fairly. The three expressions mean the same thing, and an answer should say so at the outset rather than treating them as different doctrines.

Where the rules come from

They are older than administrative law. The rule against bias appears in Dr Bonham's Case in 1610, where the College of Physicians fined a man and kept half the fine. The right to be heard was traced by English judges to the Garden of Eden, on the footing that even Adam was called on to answer before he was expelled, which is a rhetorical flourish but records how ancient the idea is.

In India they are constitutional. After Maneka Gandhi v. Union of India, AIR 1978 SC 597, a procedure under Article 21 must be right, just and fair; and arbitrariness violates Article 14 on E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555. So an Indian court enforcing natural justice is enforcing the Constitution, not merely a common law standard.

Their character: not embodied rules

A.K. Kraipak v. Union of India, AIR 1970 SC 150, describes them exactly: the rules of natural justice operate in areas not covered by any validly made law; they do not supplant the law of the land but supplement it; they are not embodied rules and their aim is to secure justice or to prevent a miscarriage of justice; and whenever a breach is complained of, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case.

Two things follow, and both are examinable.

Content varies. What fairness requires of a selection board is not what it requires of a disciplinary authority.

They yield to a statute. Where a statute excludes them expressly or by necessary implication, they are excluded, subject to what Article 21 requires.

When they apply

Wherever civil consequences follow. State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269, holds that an administrative order which involves civil consequences must be made consistently with the rules of natural justice, and that the duty to act judicially arises from the nature of the power and its consequences and not from the label attached to it.

In one line

Nobody may judge a case in which he has an interest, because a judge with an interest is not a judge.

In the wording a student can write in an exam: nemo judex in causa sua, that no one shall be a judge in his own cause, requires that a person deciding a matter shall have no interest in it and no prejudice about it; the rule is broken not only where bias is shown to have operated but where a reasonable person would apprehend that it might have, because justice must not only be done but must manifestly and undoubtedly be seen to be done.

MU's question

The University sets it as part of a whole question: that the rule against bias and the reasoned decision play a significant role in fair administration of justice in India, to be explained. The reasoned decision is in [Failure to Give Reasons: The Reasoned Decision]; this chapter is the rule, and the kinds and the test follow in the next two.

Why the appearance matters as much as the fact

Because the purpose of the rule is confidence. A litigant who loses before a judge with an interest will never accept that the interest made no difference, and no evidence can persuade him, since nobody can prove what went on in another mind. So the law does not try. It disqualifies on the appearance, and in doing so protects both the litigant and the adjudicator.

The classic Indian statement

Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425.

Facts. A complaint of professional misconduct was made against an advocate. The Chief Justice appointed a tribunal under the Bar Councils Act, and a senior advocate was appointed its chairman. That chairman had earlier appeared once for the complainant in the very case out of which the complaint arose. No objection to the constitution was taken before the tribunal. The tribunal found the advocate guilty and the High Court directed that his name be struck off the rolls.

Held. The constitution of the tribunal suffered from a serious infirmity because of the chairman's earlier appearance. Every member of a tribunal called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially, and it is of the essence of judicial administration that judges act impartially, objectively and without bias. The test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him. On the facts, however, the appellant knew the material facts, took no objection and took his chance before the tribunal, so he had waived the objection, and a fresh enquiry was directed rather than the finding simply being set aside.

In one line

There are five kinds of bias, and only the first of them disqualifies automatically.

In the wording a student can write in an exam: bias is classified as pecuniary bias, which disqualifies however small the interest; personal bias, arising from a relationship, hostility or friendship; subject matter or official bias, arising from a connection with the issue; policy bias, arising from a settled view about a general question; and departmental bias, arising from the combination of investigating and deciding functions in one body.

One, pecuniary bias

Any financial interest, however small, disqualifies. The rule is absolute because the law will not measure the amount: once the adjudicator has a stake in the outcome, no enquiry into how much it influenced him is permitted.

The classic English illustration is a Lord Chancellor who held shares in a canal company whose case he decided, and whose decree was set aside although nobody suggested that the shares had in fact affected him.

Two, personal bias

A relationship, friendship, hostility or professional connection with a party. Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425, is the Indian example: the chairman of the tribunal had appeared once for the complainant in the case out of which the complaint arose.

Personal bias is not automatic. The court asks whether a reasonable person would apprehend that the connection might have influenced the decision, so a distant acquaintance does not disqualify and a close relative does.

Three, subject matter or official bias

The decision-maker has an interest in the issue rather than in the party. Two Indian cases mark the ground.

A.K. Kraipak v. Union of India, AIR 1970 SC 150, where a member of a selection board was himself a candidate for the same service, and the Court held that his withdrawal when his own name was considered did not cure the defect, because he sat when his rivals were considered.

J. Mohapatra and Co. v. State of Orissa, AIR 1984 SC 1572.

Facts. Orissa had no statutory rule governing the selection of books for school and college libraries, and a committee and sub-committee were constituted by administrative instructions. Some members of the sub-committee were themselves authors whose books were before it for selection.

Held. The selection was set aside. An author who has submitted his own book cannot sit on the committee that selects it, and abstaining when his own book is considered does not cure the defect, because his presence and participation on the other books affects the whole exercise. The doctrine of necessity had no application, because there were many qualified persons in the State who were not authors of books under consideration, so the committee could have been constituted differently. Guidelines were laid down for future selections.

In one line

The question is not whether the adjudicator was biased but whether a fair-minded person, knowing the facts, would think he might have been.

In the wording a student can write in an exam: the test for bias in India is whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him; it is a test of reasonable apprehension or real likelihood, applied objectively from the standpoint of a reasonable person, and proof that the bias in fact operated is neither necessary nor sufficient.

The two formulations

Real likelihood of bias. Whether there was a real likelihood that the adjudicator would be biased, judged by what appeared to the court on the material.

Reasonable suspicion or reasonable apprehension of bias. Whether a reasonable person would suspect that the adjudicator might be biased.

English law argued about the difference for a century, and Indian courts have treated them as substantially the same, because both are applied objectively and neither requires proof of actual bias. The formulation an Indian court uses is Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425: the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him.

Why the test is objective

Because a subjective test would be useless in both directions. If the question were whether the adjudicator felt biased, no one would ever be disqualified. If it were whether the litigant felt aggrieved, everyone would be. So the law asks what a reasonable person, in possession of the relevant facts, would think.

Three consequences follow.

The litigant's own suspicion is not enough. It must be reasonable.

The adjudicator's assurance is not enough either. He may honestly believe himself impartial and still be disqualified.

The facts must be the real facts. A reasonable apprehension founded on a misunderstanding is not reasonable once the misunderstanding is dispelled.

What must be shown

A connection or interest, not a general grievance.

Its materiality to the issue. A shareholding in a bidder is material; a shareholding in a bank both parties use is not.

That it was known or discoverable. Waiver depends on knowledge, which is why the point matters here as well as in [Bias as a Ground of Review].

The remedy, and a practical point

The order is set aside. The usual course is not simply to allow the aggrieved party's case but to direct a fresh enquiry or a fresh decision by an unbiased authority, which is what happened in Manak Lal. That is worth remembering, because a student who says the decision is reversed rather than remitted misstates the relief.

In one line

If the only person who can decide is disqualified, he decides, because a disqualification that stops all decision is worse than the bias it prevents.

In the wording a student can write in an exam: the doctrine of necessity permits an adjudicator who would otherwise be disqualified by bias to act, where he is the only authority competent to act and where the matter would otherwise remain undecided; it is an exception born of necessity and not of convenience, and it does not apply where an unbiased authority could have been constituted.

Why the exception exists

Because the rule against bias is a means and not an end. Its purpose is that disputes should be decided fairly. If applying it means that a dispute cannot be decided at all, the purpose is defeated. So where the statute names one authority and that authority is disqualified, the law prefers a decision by a disqualified adjudicator to no decision at all.

The conditions

One, there must be no other competent authority. The statute vests the power in one body and provides no substitute.

Two, the matter must require decision. The doctrine does not save a decision that could simply have been left.

Three, the necessity must be real. Inconvenience, delay or expense are not necessity.

Four, the adjudicator must otherwise act fairly. The doctrine excuses the disqualification, nothing else: the hearing, the disclosure and the reasons are all still owed.

The Indian limit

J. Mohapatra and Co. v. State of Orissa, AIR 1984 SC 1572, worked in [The Kinds of Bias], contains the clearest Indian statement of the limit. The State argued necessity, because the persons competent to assess books were authors. The Court rejected it: there were many qualified persons in the State who were not authors of books under consideration, so a committee could have been constituted differently, and the doctrine had no application.

That is the sentence to remember. Necessity is not an excuse for having chosen the wrong people; it applies only where no other choice existed.

The typical situations

A statutory authority of one person. A Registrar, a Commissioner or a Chancellor named by the Act.

A body whose quorum cannot be made without the disqualified member.

A challenge to all the possible adjudicators at once, for instance an allegation that every member of a service tribunal is interested because the outcome affects their own pay.

A court hearing a matter that affects all judges, such as judicial salaries, where every judge is interested and the case must still be decided.

A worked example

A State Act provides that the Chancellor of a university shall decide disputes about the appointment of the Vice-Chancellor. A dispute arises about an appointment the Chancellor himself made on the recommendation of a search committee.

In one line

Nobody may be condemned unheard, and in India that rule now comes from Article 21 as much as from the common law.

In the wording a student can write in an exam: audi alteram partem requires that a person who is to be affected by a decision be given notice of the case against him and a fair opportunity to answer it before the decision is made; it applies wherever civil consequences follow, its content varies with the circumstances, and it is excluded only by express statutory words or by necessary implication, subject to what Article 21 requires.

MU's question

The University sets "Fair hearing" as a short note and, on the most recent paper, sets a whole question on the importance of natural justice including the rules of fair hearing and the absence of bias. So the answer needs the rule, its content, its constitutional footing in India and its exceptions.

The rule and its two limbs

Notice. The person must be told what is alleged, in enough detail to answer it, and given time to do so.

Opportunity. He must be able to put his case: by explanation, by evidence, and where the circumstances require it by cross-examination and by representation.

Everything else in this module is an elaboration of those two.

The Indian foundation

Civil consequences. State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269, holds that an administrative order which involves civil consequences must be made consistently with the rules of natural justice, and that the duty to act judicially arises from the nature of the power and its consequences, not from the label attached to it.

Administrative action too. A.K. Kraipak v. Union of India, AIR 1970 SC 150.

Article 21. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

Facts. The petitioner's passport was impounded by the Regional Passport Officer under section 10(3)(c) of the Passports Act 1967 on the ground that it was in the public interest to do so. The Government declined to give reasons, relying on section 10(5). She was given no hearing before the order.

Held. A law depriving a person of personal liberty must satisfy Articles 14, 19 and 21 together, and a procedure established by law must be right, just and fair, and not arbitrary, fanciful or oppressive. Natural justice is implicit in Article 21, so section 10(3)(c) had to be read as requiring a hearing although it did not say so. The audi alteram partem rule is not excluded merely because a statute is silent, and it may be moulded to the situation rather than abandoned. On the Attorney General's undertaking that the petitioner would be heard and the order reconsidered, the Court did not formally quash it.

In one line

A fair hearing has six parts, and a student who can list them can answer any problem question in this module.

In the wording a student can write in an exam: a fair hearing ordinarily requires notice of the case to be met, disclosure of the material relied on, an opportunity to be heard in answer, an opportunity to lead evidence and where necessary to test the other side's evidence, a decision by the authority that heard, and reasons; the content varies with the statutory framework, the nature of the enquiry and the consequences.

The six parts

One, notice. It must state the allegation with enough particularity to be answered, state the action proposed, and allow reasonable time. A notice which says only that the authority proposes to take action under a named section is no notice at all.

Two, disclosure. The person must be given the material on which the authority proposes to act. Deciding on undisclosed material is the commonest breach in practice: Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074.

Three, an opportunity to be heard. Written or oral. Oral is required where the facts are disputed, where credibility is in issue, or where the consequences are grave; written is often enough for a simple factual point.

Four, evidence. The person may produce his own material, and where the authority relies on witnesses he may in a proper case cross-examine them, which is [Cross-Examination and Legal Representation].

Five, a decision by the authority that heard. Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308, and [Institutional Decisions: He Who Decides Must Hear].

Six, reasons. S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.

What is variable and what is not

Not variable. That the person knows the case, and that he has an opportunity to answer before the decision. Those two are the core, and their absence is fatal.

Variable. Whether the hearing is oral, whether cross-examination is allowed, whether a lawyer may appear, how long is reasonable, how detailed the reasons must be.

That distinction is the answer to almost every problem question, because it lets a student say which complaints are fatal and which are not.

The prejudice test

Canara Bank v. V.K. Awasthy, AIR 2005 SC 2090.

Facts. A bank employee was dismissed after a departmental enquiry. He was served with a show cause notice at Kanpur where he was then living and given fifteen days to reply, and the order was passed shortly afterwards. The High Court held that the punishment order had been passed without proper application of mind and allowed a fresh representation.

Held. The Supreme Court restated the principles: natural justice is not an unruly horse and its concept has undergone a great deal of change; the rules are not embodied rules and what particular rule applies depends on the facts, the statutory framework and the nature of the enquiry; and the test is whether prejudice has in fact been caused. Where the employee had notice, a real opportunity and no prejudice is shown, the order will not be set aside merely because the opportunity could have been fuller.

In one line

A person cannot answer a case he has not been shown, so an authority which decides on material it kept back has not heard him at all.

In the wording a student can write in an exam: a fair hearing requires that the person affected be given notice which states the allegation and the action proposed with sufficient particularity, and that he be furnished with the material on which the authority proposes to act, including any report of an enquiry officer, before the decision is taken.

What a notice must contain

The allegation, with particulars. Dates, transactions, names. A charge that the officer was guilty of misconduct, without more, is not a charge.

The action proposed. So that the person knows what is at stake and can address the consequence as well as the allegation.

The material relied on, or an offer to inspect it.

A reasonable time to reply, measured by the complexity of the allegation and the volume of the material, not by administrative convenience.

Where and to whom the reply is to be made.

Disclosure: the leading case

Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074.

Facts. A group of matters raised by the Union, public sector corporations and banks turned on whether a delinquent employee is entitled to a copy of the enquiry officer's report before the disciplinary authority acts on it. The Forty-second Amendment had removed the second show cause notice on the proposed penalty from Article 311(2), and two benches of three judges had taken different views of what survived.

Held. A five-judge bench held that where the enquiry officer is someone other than the disciplinary authority, the report is material on which the disciplinary authority acts, so supplying it is part of the reasonable opportunity guaranteed by Article 311(2) and of natural justice. The report must therefore be furnished to the employee, whether or not the statute or the rules require it, before the disciplinary authority takes its decision. Non-supply does not, however, invalidate the order automatically: the court or tribunal must consider whether the employee has been prejudiced, and where no prejudice is shown the order stands.

Why it matters here. It states the disclosure rule and the prejudice qualification together, and it is the case most often cited in Indian service litigation.

What must be disclosed

Any report on which the decision will rest.

Any document, statement or inspection note relied on.

Any material collected behind the back of the person, even if the authority thinks it minor.

Any change in the case, so that a person answering one allegation is not condemned on another.

What need not be disclosed

Purely internal notes which are not the basis of the decision, though the line is thin and courts lean towards disclosure.

In one line

Neither cross-examination nor a lawyer is automatic in an administrative enquiry, and both become necessary when the case turns on somebody's word or on difficult law.

In the wording a student can write in an exam: the right to cross-examine witnesses and the right to be represented by a legal practitioner are not invariable incidents of natural justice; they are required where the circumstances make them necessary for a fair hearing, in particular where the decision turns on the credibility of witnesses, where the issues are complex, or where the other side is represented by a legally trained officer.

Why they are not automatic

Because an administrative enquiry is not a trial. It is meant to be quick, cheap and conducted by people who are not lawyers. If every enquiry required a full trial with counsel, the administration would stop, and the person affected would often be worse off, because the process would take years.

So the law asks a functional question in each case: was this incident necessary for the person to be able to meet the case?

Cross-examination: when it is required

Where the decision rests on the testimony of a witness. If the authority relies on what a person said, the affected person must be able to test it, because otherwise he is answering a version he cannot challenge.

Where credibility is in issue, which is usually the same thing.

Where the statute or rules provide for it. Most disciplinary rules do, and a breach is then also procedural ultra vires.

When it is not required

Where the material is documentary and the person can answer the document by argument.

Where the facts are admitted.

Where the enquiry is into an opinion or an assessment rather than into an event, such as a selection or an academic evaluation.

Where the identity of an informant is protected, though the substance of the information must be put.

Legal representation: the position

The starting point is that there is no absolute right to be represented by a lawyer in a departmental or administrative enquiry, and a rule excluding it is not by itself bad. But representation must be allowed where the circumstances make the absence of it unfair, and the recognised situations are these.

Where the presenting officer is legally trained. Equality of arms: if the department is represented by a lawyer or by a legally qualified officer, the delinquent must be allowed one too.

Where the charges are grave and the issues complex.

Where the person is illiterate or otherwise unable to conduct his own case, in which case assistance by a colleague or a friend is often permitted instead.

Where the rules permit it, subject to the discretion they confer.

In one line

A hearing before the decision is the rule; a hearing after it is an emergency measure, and it is always second best.

In the wording a student can write in an exam: a pre-decisional hearing is an opportunity given before the order is made, and is the normal requirement of audi alteram partem; a post-decisional hearing is an opportunity given after the order, and is accepted only where a genuine urgency or a statutory scheme makes a prior hearing impracticable, and then only if the authority is genuinely open to recalling or modifying the order on the merits.

MU's question

This is the most heavily examined topic in Module III. The University has set it as a whole question on four of the eight papers, twice asking for the significance of pre-decisional and post-decisional hearing as a principle of natural justice for fair administration, once in the light of Ridge v. Baldwin, [1964] AC 40, and once in the light of Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818. So the answer must have both cases, and must be able to argue why the prior hearing matters.

Why the prior hearing is the rule

Because a decided mind is hard to change. An authority that has made an order, communicated it and acted on it has an institutional and personal investment in it.

Because the harm may be done. A licence cancelled, a building demolished, a business closed: a later hearing cannot restore the position.

Because the burden shifts. Before the order the authority must satisfy itself; after it the citizen must persuade it to change its mind.

Because the order changes the facts. A dismissed employee out of work for two years is not in the position he was in when the enquiry began.

When a post-decisional hearing will do

Where a real emergency requires immediate action. Public health, public order, a danger to life, a run on a bank.

Where the statute so provides, expressly or by necessary implication, subject to Article 21.

Where the order is interim and a full hearing follows before it becomes final.

Where a prior hearing would defeat the purpose of the power, as with a search or a seizure.

The Indian authority

Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818.

Facts. The Industries (Development and Regulation) Act 1951 allows the Central Government to take over an industrial undertaking in the public interest. Section 15 permits a full investigation before action under section 18A, but section 18AA(1)(a) allows an immediate takeover of management, without any investigation, where the Central Government is satisfied from documentary or other evidence in its possession that the affairs of the undertaking are being managed in a manner highly detrimental to the scheduled industry or to public interest. The management of six textile undertakings of Swadeshi Cotton Mills was taken over under section 18AA(1)(a) without the company being heard.

In one line

The Government took over six textile mills overnight without hearing the company, and the Supreme Court allowed it only on condition that the company be heard afterwards.

In the wording a student can write in an exam: Swadeshi Cotton Mills v Union of India held that the audi alteram partem rule is not excluded by the absence of an express provision for a hearing in section 18AA(1)(a) of the Industries (Development and Regulation) Act 1951, that exclusion must appear from express words or necessary implication, and that where urgency justifies immediate action the affected party must be given a full post-decisional hearing at which the order may be reconsidered on the merits.

The statutory scheme, which the answer needs

Section 15. The Central Government may cause a full and complete investigation into an industrial undertaking where it 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, or where such action is necessary for conservation of resources.

Section 16. After the investigation the Government may issue directions.

Section 18A. After an investigation under section 15, the Government may authorise a person or body to take over the management of the undertaking.

Section 18AA(1)(a). Without any investigation under section 15, the Government may authorise a takeover where it is satisfied, from documentary or other evidence in its possession, that the affairs of the undertaking are being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.

The whole case turns on the contrast between section 18A, which follows an investigation in which the company participates, and section 18AA, which does not.

The case

Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818.

Facts. The Central Government took over the management of six textile undertakings of the company under section 18AA(1)(a). No investigation under section 15 was made and the company was given no hearing before the takeover. It challenged the order as being in breach of natural justice.

Held. The rules of natural justice were not excluded. The absence of an express provision for a hearing does not by itself exclude the duty to act fairly; an exclusion must be shown by express words or by necessary implication in the statute. The words of section 18AA(1)(a), including the reference to satisfaction from documentary or other evidence in its possession, indicate urgency and permit immediate action where the situation genuinely requires it, so a pre-decisional hearing may be dispensed with. But the requirement of fairness is then satisfied by a full post-decisional hearing at which the order can be reconsidered on the merits, and the order must be made subject to that opportunity. The takeover was upheld on that footing.

In one line

A chief constable was sacked without being told why, and the House of Lords used his case to bring natural justice back from fifty years of exile.

In the wording a student can write in an exam: Ridge v Baldwin held that a person holding an office from which he can be removed only for cause must be told what is alleged against him and be heard before he is dismissed; it rejected the doctrine that natural justice applies only where a body has a superadded duty to act judicially, and it restored the audi alteram partem rule to the general field of decisions affecting rights.

MU's question

The University sets a whole question on the significance of pre-decisional and post-decisional hearing in the light of this case. So the answer needs the facts, Lord Reid's three classes, the doctrine the case destroyed, and the point about void or voidable which divided the House.

The case

Ridge v. Baldwin, [1964] AC 40, [1963] UKHL 2, decided 14 March 1963.

Facts. Charles Ridge became Chief Constable of the County Borough of Brighton in 1956, after about thirty-three years in the Brighton force. He was arrested in October 1957 and tried for conspiring with senior members of his force to obstruct the course of justice. He was acquitted on 28 February 1958, but in sentencing two officers who were convicted the trial judge made grave reflections on his conduct. He was then indicted for corruption and acquitted on 6 March, no evidence being offered, and the judge made a further statement. The next day the Watch Committee met and summarily dismissed him under section 191(4) of the Municipal Corporations Act 1882, which allows the committee to dismiss a borough constable whom they think negligent in the discharge of his duty or otherwise unfit for it. He was given no notice of the grounds and no opportunity to be heard.

Held. The dismissal was declared null and void and the case was remitted to the Queen's Bench Division. Lord Reid divided dismissal cases into three classes. First, dismissal of a servant by a master, where no hearing is required, because the master may terminate for any reason or none and the question is only whether he has broken the contract. Second, dismissal from an office held at pleasure, where none is required either, because the person having the power need have nothing against the officer and need give no reason. Third, dismissal from an office where there must be something against a man to warrant his dismissal, where an unbroken line of authority requires that he first be told what is alleged and be heard in his defence. A Chief Constable falls in the third class, because the 1882 Act permits dismissal only for negligence or unfitness. Lord Evershed and Lord Devlin took the view that the breach made the decision voidable rather than void ab initio.

In one line

A passport was impounded without reasons and without a hearing, and the Supreme Court answered by rebuilding Article 21.

In the wording a student can write in an exam: Maneka Gandhi v Union of India held that Articles 14, 19 and 21 are not mutually exclusive but form a single scheme, that a procedure established by law under Article 21 must be right, just and fair and not arbitrary, fanciful or oppressive, and that natural justice is implicit in Article 21, so a statutory power to impound a passport must be read as requiring a hearing although the section says nothing about one.

MU's question

The University sets a whole question on the contribution of this case to the applicability of the principle of hearing in the administrative exercise of power in India. So the answer must show three things: what the case did to Article 21, what it did to the audi alteram partem rule, and what it did on the facts, which is the acceptance of a post-decisional hearing.

The case

Maneka Gandhi v. Union of India, AIR 1978 SC 597.

Facts. The petitioner's passport was impounded by an order of the Regional Passport Officer, New Delhi, under section 10(3)(c) of the Passports Act 1967, which permits impounding if the passport authority deems it necessary to do so in the interests of the sovereignty and integrity of India, the security of India, friendly relations with a foreign country, or in the interests of the general public. The order recited that it was in the public interest. The Government declined to furnish the reasons, relying on section 10(5), which allows the reasons to be withheld in the interests of the general public. She was given no hearing before the order. She petitioned under Article 32.

Held. A law depriving a person of personal liberty must satisfy Articles 14, 19 and 21 together; the procedure contemplated by Article 21 must be right, just and fair, and not arbitrary, fanciful or oppressive, and a procedure which is arbitrary is no procedure at all. Natural justice is implicit in Article 21, so section 10(3)(c) had to be read as requiring a hearing even though it does not say so; the audi alteram partem rule is not excluded merely because a statute is silent, and where a hearing before the order would defeat the purpose it may be moulded rather than abandoned. On the Attorney General's undertaking that the petitioner would be given an opportunity to be heard and that the order would be reconsidered, the Court did not formally strike the order down.

Why it matters here. It is the case that makes natural justice constitutional in India, and it is the reason a student answering any question in this module can say that fairness is required by Article 21 and not merely by the common law.

In one line

In India a breach of natural justice is not merely unfair, it is unconstitutional.

In the wording a student can write in an exam: the principles of natural justice are read into Article 14, because an arbitrary decision is unequal, and into Article 21, because a procedure that deprives a person of life or personal liberty must be right, just and fair; so a breach of natural justice by the State is a violation of a fundamental right and is enforceable under Articles 32 and 226.

MU's question

The University states the proposition in the question itself and asks the candidate to explain the role of the Indian judiciary in ensuring substantive and procedural fairness in the light of the due process clause. So this chapter proves the proposition; the due process half is [Due Process in India] and the substantive half is [Substantive and Procedural Fairness].

Article 14: the arbitrariness route

E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, holds that equality is a dynamic concept which cannot be cribbed, cabined and confined within traditional and doctrinaire limits; that from a positivistic point of view equality is antithetic to arbitrariness; that equality and arbitrariness are sworn enemies; and that where an act is arbitrary it is implicit in it that it is unequal and therefore violative of Article 14.

The step from that to natural justice is short. A decision made without hearing the person affected is arbitrary, because the authority has decided without the material the person could have supplied. So the breach is a violation of Article 14.

Two consequences follow. A rule which permits a decision without a hearing is itself open to attack, which is Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101, where a Constitution Bench struck down a regulation permitting termination of a permanent employee without notice, reasons or enquiry as arbitrary and violative of Article 14. And an order made without a hearing can be attacked under Article 32, because a fundamental right is infringed.

Article 21: the fair procedure route

Maneka Gandhi v. Union of India, AIR 1978 SC 597, holds that the procedure contemplated by Article 21 must be right, just and fair and not arbitrary, fanciful or oppressive, and that natural justice is implicit in Article 21.

The reach of that proposition depends on the reach of life and personal liberty, and both have been read widely.

Livelihood. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, holds that the right to life includes the right to livelihood, because no person can live without the means of living.

Private employment. D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259, applies the same reasoning to a termination by a private company under certified standing orders, holding that a deeming clause must be read as requiring an opportunity to explain.

In one line

The Constituent Assembly left due process out of Article 21 on purpose, and the Supreme Court put it back in 1978.

In the wording a student can write in an exam: Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law; the Constituent Assembly deliberately preferred that phrase to the American due process of law, and A.K. Gopalan gave it a narrow reading, but Maneka Gandhi held that the procedure must be right, just and fair, so that the substance of procedural due process now applies in India.

MU's question

The University asks candidates to explain the role of the Indian judiciary in ensuring substantive and procedural fairness in the light of the due process clause in India. The phrase due process clause in India is the University's own, and an accurate answer begins by saying that there is no such clause and explaining how the substance arrived without it.

What the Assembly did

The draft Article 15, which became Article 21, originally used the words due process of law. The Assembly considered the American experience, in which the clause had been used to strike down social and economic legislation, and was advised against it. The words procedure established by law were adopted instead, borrowed from the Japanese Constitution of 1946. The intention was that the courts should test only whether a procedure existed and was followed, not whether it was fair.

What A.K. Gopalan made of it

The first major decision on Article 21 read the words narrowly. Procedure established by law meant procedure prescribed by a law made by a competent legislature, and the court could not ask whether the procedure was reasonable. It also held that Articles 19, 21 and 22 were separate compartments, so a law of preventive detention valid under Article 22 need not satisfy Article 19.

For nearly thirty years that was the law, and the practical result was that a legislature could prescribe any procedure it liked.

What Maneka Gandhi did

Maneka Gandhi v. Union of India, AIR 1978 SC 597, worked in [Maneka Gandhi and the Hearing Requirement in Administrative Action], held that Articles 14, 19 and 21 form a single scheme, that the procedure contemplated by Article 21 must be right, just and fair and not arbitrary, fanciful or oppressive, and that natural justice is implicit in Article 21.

The reasoning is worth stating because an examiner looks for it. A law prescribing a procedure is still a law, and any law must satisfy Article 14; a procedure which is arbitrary offends Article 14; and an arbitrary procedure is therefore not a procedure established by law within the meaning of Article 21. The words were not rewritten; they were read in the light of the rest of Part III.

In one line

Procedural fairness is about how the decision was reached; substantive fairness is about the decision itself, and Indian courts do both, but not to the same depth.

In the wording a student can write in an exam: procedural fairness governs the manner of the decision, requiring notice, a hearing, an unbiased adjudicator and reasons; substantive fairness governs the content of the decision, requiring that it not be arbitrary, unreasonable or disproportionate; Indian courts enforce the first fully and the second through Article 14 arbitrariness, Wednesbury unreasonableness and proportionality.

MU's question

The University asks for the role of the Indian judiciary in ensuring substantive and procedural fairness in the light of the due process clause. The due process element is [Due Process in India]; this chapter separates the two kinds of fairness and shows how far the courts go with each.

The two kinds

Procedural fairness. The rules of natural justice and any procedure the statute prescribes. It answers the question: was he treated fairly on the way to the decision?

Substantive fairness. The quality of the decision itself. It answers the question: is the decision itself defensible, or is it arbitrary, excessive or irrational?

The reason the distinction matters is the depth of review. A court is comfortable reviewing procedure, because it is expert in procedure and because correcting it does not require the court to choose. It is uncomfortable reviewing substance, because that comes close to deciding.

What Indian courts do with procedure

Everything in this module: notice, disclosure, hearing, an unbiased adjudicator, a decision by the person who heard, reasons. The standard is high, the source is constitutional after Maneka Gandhi v. Union of India, AIR 1978 SC 597, and the only significant qualification is prejudice: Canara Bank v. V.K. Awasthy, AIR 2005 SC 2090.

What Indian courts do with substance

Arbitrariness under Article 14. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, makes an arbitrary decision unconstitutional. This is the widest substantive control, and it is uniquely Indian.

Wednesbury unreasonableness. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 KB 223, at its very high threshold.

Proportionality where a right or a punishment is in issue. Modern Dental College and Research Centre v. State of Madhya Pradesh, decided on 2 May 2016, and Justice K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161.

Nothing at all on the merits of a policy. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, and Tata Cellular v. Union of India, AIR 1996 SC 11.

The point where the two meet

Reasons. A decision without reasons cannot be tested for substantive fairness at all, which is why the duty to give them, in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, is simultaneously a procedural requirement and the precondition of substantive review. That is the answer to a question asking how the two are connected.

In one line

Most Indian natural justice cases are service cases, and Article 311 is the reason.

In the wording a student can write in an exam: Article 311(1) provides that no person who is a member of a civil service of the Union or of a State, or holds a civil post under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he was appointed; Article 311(2) provides that no such person shall be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard in respect of those charges, subject to three exceptions in the second proviso.

Why service cases dominate the subject

Because a government servant has a status rather than a mere contract, because Article 311 gives him a constitutional protection, and because the sheer number of disciplinary proceedings in India makes this the field in which the rules are worked out. Nearly every doctrine in this module was refined in a service case.

The scheme of Article 311

Clause (1): who may dismiss. Not an authority subordinate to the appointing authority. The rank matters, not the identity, so a successor in the same post is competent.

Clause (2): the inquiry. An inquiry in which the person is informed of the charges and given a reasonable opportunity of being heard in respect of those charges. Since the Forty-second Amendment the second stage, a show cause notice against the proposed penalty, is no longer required, though the enquiry report must still be furnished: Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074.

The second proviso: three exceptions.

1. Where the person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.
2. Where the authority empowered to dismiss is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold the inquiry.
3. Where the President or the Governor is satisfied that in the interest of the security of the State it is not expedient to hold the inquiry.

The leading case

Union of India v. Tulsiram Patel, AIR 1985 SC 1416.

Facts. A group of appeals raised the validity of dismissals under the second proviso to Article 311(2), in which the enquiry had been dispensed with under one or other of the three clauses.

Held. A Constitution Bench held that the second proviso excludes not only the inquiry required by Article 311(2) but also the principles of natural justice, because those principles are themselves embodied in that clause, and a rule of natural justice can be excluded by a constitutional provision. The exclusion is only of the pre-decisional inquiry: the dismissed servant retains the departmental appeal and review, at which the merits can be gone into, so what remains is a post-decisional remedy. The reasons for dispensing with the inquiry must be recorded in writing and are open to judicial review on the grounds of mala fides or non-application of mind, and the satisfaction may be examined to see whether it was reached on relevant material.

In one line

If a public authority has promised something or has always done something, a person may expect it to go on, and the law protects that expectation even where he has no right.

In the wording a student can write in an exam: legitimate expectation is an expectation of a benefit, a privilege or a procedure, arising from an express promise held out by a public authority or from an established practice which the person could reasonably expect to continue; it does not amount to a legal right, but it entitles the person to be heard before the expectation is defeated and, in a proper case, to have the substance of the expectation honoured unless a larger public interest requires otherwise.

MU's question

This is set on six of the eight papers, more than any other item in Module III, and on the most recent paper as a whole question asking for an analysis of the doctrine as part of procedural fairness. So the answer needs the definition, the two kinds, the sources, the Indian cases and the limits.

Why the doctrine exists

Because the ordinary categories were too crude. A person either had a right, in which case he could sue, or he had nothing, in which case the administration could do as it liked. Between the two lies a large field: a licence renewed for twenty years, a policy published and relied on, a practice of consultation followed for decades. In none of those does the person have a right. In all of them he has something, and the doctrine is the name of that something.

The two kinds

Procedural legitimate expectation. An expectation of being consulted, or heard, before a decision is taken. This is the older and less controversial kind, and it fits naturally into this module.

Substantive legitimate expectation. An expectation of the benefit itself, so that the authority must either give it or justify not giving it. This is the more difficult kind, and Indian law accepts it in a limited form.

Where it comes from

Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374, worked in [Illegality, Irrationality and Procedural Impropriety], is the case that put it on the map. Lord Fraser said that even where a person claiming a benefit or privilege has no legal right to it as a matter of private law, he may have a legitimate expectation of receiving it, and the courts will protect his expectation by judicial review as a matter of public law. On the facts the unions would have had a legitimate expectation that the minister would consult them before issuing the instruction, but national security displaced it.

In one line

Indian courts accept the doctrine fully as a rule of fair procedure and cautiously as a claim to the benefit itself.

In the wording a student can write in an exam: in India legitimate expectation is an aspect of the duty of non-arbitrariness under Article 14; a procedural expectation entitles the person to be heard before it is defeated, while a substantive expectation is protected only to the extent that a change of policy defeating it must be justifiable on Wednesbury principles, and it yields to an overriding public interest.

The Indian line, in five cases

One, the doctrine enters through Article 14. Food Corporation of India v. Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601.

Facts. The Corporation invited tenders for the sale of damaged food grains. The respondent's bid was the highest, but the Corporation was not satisfied with the amount, invited all the tenderers to negotiate, and accepted a higher offer made in the negotiations. The highest original bidder said its tender should have been accepted.

Held. The Corporation's action was upheld. Every holder of a public office and every organ of the State must act non-arbitrarily and fairly, and due consideration of a legitimate expectation forms part of that duty and of the rule of law. A legitimate expectation is not itself a legal right; it operates in the field of non-arbitrariness, and where the expectation is outweighed by a larger public interest the decision is not open to challenge merely because the expectation is disappointed. Since the object of the sale was to obtain the best price for public property, inviting negotiations was fair.

Why it matters here. It is where the doctrine enters Indian law, and it enters as an aspect of Article 14 rather than as a separate head.

Two, what makes an expectation legitimate. Union of India v. Hindustan Development Corporation, AIR 1994 SC 988.

Facts. The Railway Board procured cast steel bogies. Three large manufacturers quoted an identical price, from which the Board inferred a cartel, and it adopted a dual pricing policy giving the smaller manufacturers a higher rate and a larger share than before. The large manufacturers challenged the policy, saying they had a legitimate expectation of the earlier pattern.

Held. The policy was upheld. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law, or custom, or an established procedure followed in a regular and natural sequence; it must be justifiably legitimate and protectable and is distinguishable from a mere anticipation. Such an expectation does not by itself fructify into a right. A claim can be sustained only where the decision-maker's action is arbitrary, unreasonable or in breach of natural justice, and it yields to a bona fide change of policy or an overriding public interest. Judicial review is of the decision-making process and not of the decision.

In one line

Natural justice can be excluded, but only by clear words, by necessary implication, or by a situation in which a hearing is impossible or pointless.

In the wording a student can write in an exam: the principles of natural justice may be excluded by express statutory provision or by necessary implication, by a constitutional provision, by an emergency requiring immediate action, by considerations of confidentiality or public interest, by the impracticability of a hearing, by the interim or legislative character of the action, and where no useful purpose would be served; the exclusion is construed strictly and, in India, is subject to the floor set by Article 21.

The rule of construction first

Silence is not exclusion. Maneka Gandhi v. Union of India, AIR 1978 SC 597, holds that the audi alteram partem rule is not excluded merely because a statute is silent, and Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, holds that exclusion must be shown by express words or by necessary implication. So an answer must begin by saying that the burden is on the person asserting exclusion.

The grounds of exclusion

One, express statutory exclusion. A statute may say that no notice or hearing is required. It is then a question whether the statute itself is valid, and in India Article 21 sets a floor.

Two, necessary implication. Where a hearing would be inconsistent with the scheme, as with a power of search or seizure whose object would be defeated by notice.

Three, a constitutional provision. Union of India v. Tulsiram Patel, AIR 1985 SC 1416, holds that the second proviso to Article 311(2) excludes the principles of natural justice as well as the inquiry, because those principles are embodied in the clause and a constitutional provision may exclude them.

Four, emergency. Where immediate action is necessary, the prior hearing may be dispensed with and replaced by a post-decisional one: Swadeshi Cotton Mills.

Five, confidentiality and public interest. Where disclosure would harm the security of the State or reveal a protected source, the material may be withheld, though the substance must ordinarily be put to the person and the material shown to the court.

Six, impracticability. Where the number of persons affected makes individual hearings impossible, as with a general order affecting a whole class, though this shades into the legislative exception.

Seven, legislative action. Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277: price fixation is legislative in character and attracts no hearing.

Eight, no right affected. Where the decision affects no legal right or legitimate expectation, as with a purely internal administrative arrangement.

Nine, where a hearing would serve no purpose. The useless formality theory, which is dangerous and is worked separately in [The Useless Formality Theory].

In one line

The argument that a hearing would have made no difference is the most abused argument in administrative law, and it succeeds only in a very narrow class of case.

In the wording a student can write in an exam: the useless formality theory is the contention that a breach of natural justice should not vitiate an order where a hearing would have made no difference to the result; Indian courts have accepted it in a narrow class of cases where the facts are admitted or the conclusion is inevitable in law, and have rejected it wherever the outcome could conceivably have been different, because otherwise the court would be deciding the very question the authority was required to decide after hearing.

Why the argument is dangerous

Because it inverts the enquiry. The rule requires the authority to decide after hearing. The argument asks the court to decide, without hearing, that hearing would not have helped. If that were freely allowed, the rule would exist only in cases where the citizen would have won anyway, which is to say in no case at all, since a person who would have won without a hearing does not need one.

When the argument succeeds

Where the facts are admitted. If the person concedes the conduct alleged and the consequence follows automatically, there is nothing to hear him about.

Where the conclusion is inevitable in law. If the only question is whether a statutory disqualification applies and it plainly does, a hearing cannot change it.

Where the person has in fact been heard elsewhere, in a proceeding covering the same ground.

Where the order is in the person's favour, or affects him only trivially.

When it fails

Wherever the outcome could conceivably have been different.

Where the person was never told the case at all. He cannot show what he would have said about material he never saw, and to require him to do so is to reward the concealment: this is the position in Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074, which requires prejudice to be considered but treats non-supply of a report the authority acted on as a serious matter.

Where credibility or an assessment is in issue.

Where the vice is bias rather than want of hearing. A decision by a disqualified adjudicator is void whatever its merits, so the argument has no application at all.

The Indian formulation

The Indian courts express the point as prejudice rather than as futility, and the difference is important. Canara Bank v. V.K. Awasthy, AIR 2005 SC 2090, restates the position: natural justice is not an unruly horse, the rules are not embodied rules, what applies depends on the facts and the statutory framework, and the test is whether prejudice has in fact been caused.

In one line

If an order made without a hearing is void it never existed and may be ignored; if it is voidable it stands until a court sets it aside, and the difference decides what a citizen may safely do.

In the wording a student can write in an exam: an order made in breach of natural justice is generally treated in India as void, that is a nullity in law, but the practical position is that the person affected must still come to court to have it set aside, must come in time, and may be refused relief on discretionary grounds, so the distinction between void and voidable has less practical effect than its name suggests.

Why the question arises at all

Because a nullity is nothing. If an order is void, then in strict theory the person affected may ignore it, may raise its invalidity as a defence in any proceeding, need not fear limitation, and cannot be met with the argument that he acquiesced. If it is voidable, every one of those is untrue.

The split in Ridge v. Baldwin

Ridge v. Baldwin, [1964] AC 40, is where the modern argument starts. The majority declared the dismissal null and void. Lord Evershed and Lord Devlin took the view that the breach made the committee's decision voidable rather than void ab initio, Lord Devlin drawing the distinction between a wrong exercise of a jurisdiction which a body has and a usurpation of a jurisdiction which it has not, and observing that if there is no jurisdiction the decision is a nullity whether the court quashes or not, while if there is jurisdiction but a miscarriage of natural justice, the decision stands good until quashed.

That is the clearest statement of both positions in one case, which is why MU's question about Ridge v. Baldwin can reach this point.

Anisminic and the theory of nullity

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147, pushes towards void. Lord Reid said that a determination which is a nullity is not a determination at all, and that there are no degrees of nullity. On that reasoning, a decision made in breach of natural justice is not a decision, because the authority did something in the course of the enquiry which made its decision a nullity.

The Indian position

Indian courts say void, and then behave as though the order must nevertheless be set aside. Three propositions describe the position honestly.

The order is a nullity in theory. An order made without jurisdiction or in flagrant breach of natural justice is void, and State of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86, describes proceedings so contrary to natural justice that the resulting order is a nullity.

In one line

The officer who listens to your case must be the officer who decides it, because a decision by somebody who did not hear you is not a decision on your case.

In the wording a student can write in an exam: where a statute requires a hearing before a decision, the authority which hears must be the authority which decides; divided responsibility, in which one officer hears the objections and another determines them, is a violation of natural justice and vitiates the decision.

The case

Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308.

Facts. To nationalise road transport under Chapter IVA of the Motor Vehicles Act 1939, the General Manager of the Andhra State Transport Undertaking published a scheme under section 68C and invited objections. By an order of the Chief Minister the objections of the existing private operators were received and heard by the Secretary to the Home Department, who was in charge of Transport, but the scheme was approved and the objections decided by the Chief Minister himself. The scheme was then published, and the petitioners, permit holders plying buses in Krishna District, challenged it.

Held. The approval was set aside. Where a statute requires a hearing before a decision, the authority that hears must be the authority that decides. One officer hearing the objections and another deciding them is a violation of natural justice, because the deciding officer has not heard the objectors and the hearing officer does not decide, and the divided responsibility vitiated the approval of the scheme.

Why it matters here. It is the Indian authority for the proposition, and it is a case about a policy decision affecting many people, which shows that the rule is not confined to disciplinary proceedings.

Why the rule exists

Because a hearing is not a formality whose product is a file. Its value lies in the impression the material makes on the mind that will decide: the answer given to a question, the manner of a witness, the point that emerges only in argument. A summary of the hearing, however careful, is not the hearing.

The problem the rule creates

A modern administration cannot always comply. A minister cannot personally hear ten thousand objections to a road scheme; a board of five cannot always sit together; a corporation's decisions are taken by committees whose composition changes.

So the law has developed a set of accommodations, and an LL.M. answer should give them.

One, delegation of the hearing where the statute permits. Many Acts expressly allow an officer to hear and report.

Two, the report plus the material. Where the deciding authority receives a full record and the report, and the affected person is given the report and an opportunity to answer it, the objection is met. That is why Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074, requires the enquiry officer's report to be furnished: it is the device that makes the separation lawful.

In one line

There are two families of remedy against the administration, public law and private law, and a student who cannot tell them apart will ask the wrong court for the wrong thing.

In the wording a student can write in an exam: the remedies against administrative action are the public law remedies of the writs under Articles 32 and 226, the statutory remedies of appeal, revision and review, and the private law remedies of a suit for a declaration, an injunction or damages under the ordinary law; the first are discretionary and quick, the second must ordinarily be exhausted first, and the third are of right but slow.

MU's printed topic

MU prints the single word "Remedies" as topic 6. The University has asked about injunction and declaration as judicial remedies on three papers, about the role of writs in the administrative process on the most recent one, and about remedies of injunction and declaration alongside delegated legislation. So the module needs both families.

The three families

Public law remedies. The writs and the wider directions and orders under Articles 32 and 226. Discretionary, quick, no oral evidence, and confined to public law questions.

Statutory remedies. Appeal, revision, review or reference under the Act which created the power. Ordinarily to be exhausted first, which is [Alternative Remedies], and often the only forum in which facts can be reconsidered.

Private law remedies. A suit in a civil court for a declaration under section 34 of the Specific Relief Act 1963, for an injunction under sections 36 to 42, or for damages in tort or contract. Available as of right, but slow, expensive, requiring notice to the Government under section 80 of the Code of Civil Procedure, and subject to the limits in section 41 of the Specific Relief Act.

What each family can and cannot do

Choosing between them

If facts are disputed, a suit or a statutory appeal. A writ court will not try disputed questions of fact, which is [Disputed Questions of Fact].

If speed matters and the illegality is on the face of the record, a writ.

If money is what is wanted, a suit, unless the case falls in the narrow public law compensation class of Rudul Sah v. State of Bihar, AIR 1983 SC 1086.

In one line

A writ petition is a document, a set of parties, an interim application and a final order, and knowing what each of them looks like is what MU means by the role of writs in the administrative process.

In the wording a student can write in an exam: a writ petition under Article 226 is presented by a person aggrieved or, in a public interest matter, by a person acting bona fide; it names the authority whose act is challenged and the persons who would be affected by the relief; it is supported by an affidavit and the documents relied on; it is heard on affidavits without oral evidence; and it is disposed of by an order which ordinarily quashes and remits rather than substituting the court's own decision.

MU's question

The University sets "Role of writs in administrative process" as a lettered short note on the most recent paper. A candidate who writes only about the five writs answers half of it; the other half is what a writ petition actually does to an administration, which is this chapter.

The document

The cause title. The petitioner, and the respondents. The State or the Union is ordinarily a respondent where a government department is involved, because the department is not a legal person.

The prayer. In Indian practice the prayer asks for a writ, order or direction in the nature of certiorari, mandamus or whichever is appropriate, and adds a general prayer, because Articles 32(2) and 226(1) allow the court to give whatever relief is appropriate.

The grounds. Set out as separate grounds, which is where the Module II vocabulary is used.

The affidavit. A writ petition is proved by affidavit, and this is why disputed questions of fact are a difficulty, as [Disputed Questions of Fact] explains.

The annexures. The impugned order, the notice, the reply, the rules, the correspondence.

Who must be joined

The authority whose act is challenged.

Anybody who will be affected if the petition succeeds. A candidate challenging a selection must join the selected candidates, or the petition is bad for non-joinder of necessary parties, because an order cannot be made against a person who has not been heard.

Not every person with an interest. Where the affected persons are very numerous, a representative respondent may be permitted.

Interim relief

Most of the practical value of the jurisdiction is here. A stay of the impugned order, an interim direction, or a direction preserving the position pending the hearing.

Article 226(3) is the only place in the Constitution regulating this: where an interim order is made against a party without furnishing him copies of the petition and the supporting documents and without an opportunity of being heard, and he applies for its vacation and serves a copy of the application, the High Court must dispose of the application within two weeks of receipt or service, whichever is later, and if it does not, the interim order stands vacated.

In one line

A person may be entirely right and still lose, because the writ is a discretionary remedy and the court may refuse it.

In the wording a student can write in an exam: the jurisdiction under Article 226 is discretionary, so that even where the petitioner establishes an illegality the court may refuse relief on grounds such as delay, the availability of an alternative remedy, the conduct of the petitioner, the existence of disputed questions of fact, the futility of the relief or the disproportionate public inconvenience it would cause; the discretion is judicial and must be exercised on recognised grounds.

Why the writ is discretionary

Because it descends from the prerogative writs, which issued at the King's pleasure rather than as of right between subject and subject; because it is a summary remedy without a trial, so a court must be able to decline where the summary procedure is unsuitable; and because it is a public law remedy in which the interests of persons not before the court are often affected.

The chapters that follow are all applications of this

Alternative remedies, laches, res judicata, disputed questions of fact, the petitioner's conduct, academic questions, and restraint in contractual and economic matters. Each is a recognised ground on which the discretion is exercised, and each is a chapter of Module IV. This chapter is the proposition they share.

The discretion is judicial, not arbitrary

Two consequences.

It must be exercised on a recognised ground, and an order refusing relief must say why.

It is narrower under Article 32. Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080, holds that the Supreme Court is bound to entertain a petition where a fundamental right is infringed, and that the existence of another remedy is not by itself a ground of refusal, as it may be under Article 226. But even there, Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898, says that once a matter has reached the Court the extent or manner of interference is for the Court.

Where the discretion works in the citizen's favour

It is not only a shield for the administration.

Moulding relief. A court may quash part of an order, or preserve completed transactions while striking down the rule.

Prospective operation. A declaration may be given prospective effect to avoid unsettling past transactions.

Directions beyond the writs. Compensation in Rudul Sah v. State of Bihar, AIR 1983 SC 1086, and continuing directions in public interest cases.

Ignoring technical objections. A wrong writ named, a defective prayer, a late amendment.

A worked example

A rule fixing seniority is found to be contrary to the parent Act, twelve years after it was made, on a petition by an officer who has been promoted twice under it and now finds it inconvenient.

In one line

An injunction is a court order telling somebody to stop doing something or to undo it, and against the administration it is a private law remedy with public law limits.

In the wording a student can write in an exam: an injunction is an order of a civil court restraining a person from doing an act or requiring him to do one; under the Specific Relief Act 1963 it is either temporary, granted during the pendency of a suit under section 37 read with the Code of Civil Procedure, or perpetual, granted by the decree under sections 38 and 39; and section 41 lists the situations in which it cannot be granted at all.

MU's question

The University sets injunction and declaration together as a short note on three papers, in the words "Injunction and declaration as judicial remedies" and "Remedies of Injunction and declaration". So this chapter and [Declaration as a Remedy Against the Administration] are a pair, and the third of the group is [Section 41 of the Specific Relief Act: The Injunctions a Court Cannot Grant].

The statutory scheme

Section 36. Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.

Section 37(1). Temporary injunctions are such as are to continue until a specified time or until further order of the court, may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure.

Section 37(2). A perpetual injunction can be granted only by the decree made at the hearing and upon the merits of the suit, and the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

Section 38. A perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the plaintiff, whether expressly or by implication.

Section 39. A mandatory injunction: when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of and also to compel performance of the requisite acts.

Section 40. Damages may be awarded in addition to or in substitution for an injunction.

The kinds, and the vocabulary

Temporary or interim. Granted pending the suit, under the Code.

Perpetual. Granted by the decree, on the merits.

Prohibitory. Forbidding an act.

Mandatory. Commanding an act, which is section 39.

Quia timet. Granted before the wrong has occurred, where it is threatened and imminent.

Injunction against the administration, and its limits

An injunction is a private law remedy, so three limits follow.

In one line

A declaration is a court's statement of what the legal position is, and it works against the administration because an administration that knows it has lost usually complies.

In the wording a student can write in an exam: section 34 of the Specific Relief Act 1963 provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right, and the court may in its discretion make a declaration that he is so entitled; the proviso bars a declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

The provision, in its own words

Section 34 also carries an Explanation: a trustee of property is a person interested to deny a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.

Section 35 provides that a declaration made under Chapter VI is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, those parties would be trustees.

The elements a student must be able to list

A legal character or a right to property. Legal character means status: a citizen, an heir, a member of a service, the holder of an office. The expression is wide enough to cover a person's status as an employee, which is why the remedy matters in service cases.

A denial, or a person interested to deny. The defendant must be denying the plaintiff's title, or be interested in denying it.

The court's discretion. The section says the court may in its discretion make the declaration.

The proviso. If the plaintiff can ask for consequential relief and does not, no declaration will be made. So a dismissed employee who could ask for reinstatement and arrears must ask for them, and cannot sue for a bare declaration that his dismissal is void.

Section 35: binding only on the parties. This is the great weakness of the remedy compared with a writ, which quashes the order for all purposes.

Why the remedy matters against the administration

Because it fits an invalid order exactly. If the order is a nullity, what the citizen wants is a statement that it is, and a declaration says so.

Because it survives where a writ is refused. A civil suit is available as of right, so a person defeated by laches or by a disputed question of fact may still sue.

In one line

Section 41 lists ten situations in which a court cannot grant an injunction, and the textbook line about public duties is not one of them.

In the wording a student can write in an exam: section 41 of the Specific Relief Act 1963 provides that an injunction cannot be granted in ten enumerated situations, of which the most important for administrative law are clause (h), where equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust, clause (i), where the conduct of the plaintiff or his agents disentitles him to the assistance of the court, and clause (j), where the plaintiff has no personal interest in the matter.

What the section actually says

An injunction cannot be granted:

(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;

(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;

(c) to restrain any person from applying to any legislative body;

(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;

(e) to prevent the breach of a contract the performance of which would not be specifically enforced;

(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;

(g) to prevent a continuing breach in which the plaintiff has acquiesced;

(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of a relevant facility related to it or services being the subject matter of such project;

(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;

(j) when the plaintiff has no personal interest in the matter.

A correction a student should carry away

Textbooks and older answers say that a civil court cannot grant an injunction interfering with the public duties of a department of Government. That was section 56(d) of the Specific Relief Act 1877. It is not in the Act of 1963. The list above is the whole of section 41, and it contains no such clause.

What keeps a civil court out of public law today is different and less absolute:

Clause (h). Where a petition under Article 226 is an equally efficacious usual mode, an injunction will be refused.

In one line

A writ court can quash the order that ruined you; only a civil court can make the State pay for it, and even then the State has a defence the citizen does not.

In the wording a student can write in an exam: Article 300(1) provides that the Government of India may sue and 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 provisions made by Parliament or a State legislature, in the like cases as the Dominion of India and the corresponding Provinces might have sued or been sued if the Constitution had not been enacted; so the liability of the State in tort in India is the liability of the East India Company, as it stood before 1950, until Parliament legislates.

The provision and its strange effect

Article 300(1) does not itself state when the State is liable. It fixes the liability by reference to the position under the Government of India Act 1935, which in turn referred back to the Act of 1915 and ultimately to the liability of the East India Company. So an Indian court asking whether a State is liable for the negligence of its officers is, in form, asking what the East India Company would have been liable for. Parliament has never enacted the law Article 300 contemplates, so the position is still the inherited one.

The distinction that came from it: sovereign and non-sovereign functions

The inherited law distinguished acts done in the exercise of sovereign powers, for which there was no liability, from acts done in the conduct of undertakings which a private person might have carried on, for which there was.

The distinction was applied strictly. Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, is the standing example: gold seized by the police and misappropriated by a head constable, and the State held not liable because the seizure was in the exercise of a statutory power referable to the sovereign function of maintaining law and order.

And then narrowed almost to nothing. N. Nagendra Rao and Co. v. State of Andhra Pradesh, AIR 1994 SC 2663, confined the immunity to functions which are inalienable and cannot be performed by a private person, such as defence, foreign affairs and the administration of justice, and held the State liable for negligence in the seizure and handling of goods under an essential commodities order.

The public law route, which avoids the whole problem

Compensation under Articles 32 and 226 for the violation of a fundamental right is a different remedy, on a different basis, and the defence of sovereign immunity is not available to it. That is [Compensation in Public Law], and it is the reason a modern Indian litigant with a serious grievance goes to the writ court rather than the civil court.

In one line

Where the State violates a fundamental right, the writ court can order it to pay, and sovereign immunity is no answer.

In the wording a student can write in an exam: compensation in public law is a remedy available in proceedings under Articles 32 and 226 for the violation of a fundamental right, founded on strict liability for the contravention, to which the defence of sovereign immunity is not available; it is distinct from and in addition to the private law remedy in tort, and any amount awarded may be adjusted against damages recovered in a civil suit.

Why the remedy had to be invented

Because quashing is often worthless. A man illegally imprisoned for fourteen years and then released gains nothing from an order that his detention was unlawful. A mother whose son died in police custody cannot be given her son back. In both, the only meaningful relief is money, and the ordinary route to money was a civil suit which faced sovereign immunity, section 80 notice and ten years of delay.

The first case

Rudul Sah v. State of Bihar, AIR 1983 SC 1086.

Facts. The petitioner was acquitted in 1968 but was kept in prison for more than fourteen years afterwards. He filed a habeas corpus petition under Article 32 asking for release and for compensation. By the time the petition was heard he had been released.

Held. His detention after acquittal was wholly unjustified. Article 32 confers power on the Supreme Court to issue directions, orders or writs for the enforcement of the rights conferred by Part III, and Article 21 would be denuded of its significant content if the Court's power were limited to ordering release from illegal detention. One of the telling ways in which the violation can be prevented and compliance with Article 21 secured is to make the violators pay monetary compensation, which is a palliative for the unlawful acts of instrumentalities acting in the name of the public interest. Compensation was ordered, without prejudice to any suit for damages.

Why it matters here. It is the beginning of the remedy, and the reasoning is textual: Article 32(2) speaks of directions and orders, not only of writs.

The doctrinal basis

Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.

Facts. A young man was taken into police custody in connection with a theft investigation and detained at a police outpost. The next day his body was found on a railway track with multiple injuries. His mother wrote to the Supreme Court and the letter was treated as a petition under Article 32. The police defence was that he had escaped from custody.

Held. The defence of escape was rejected on the medical and circumstantial evidence, and compensation was awarded. Award of compensation in a proceeding under Article 32 or Article 226 is a remedy available in public law, based on strict liability for the contravention of fundamental rights, to which the defence of sovereign immunity is not available. It is distinct from and in addition to the private law remedy in tort, and the amount awarded may be adjusted against damages recovered in a civil suit.

In one line

Most Acts give the citizen a remedy before the courts are reached, and the writ court will usually send him there first.

In the wording a student can write in an exam: statutory remedies are the appeal, revision, review and reference provided by the Act which created the power; they are ordinarily the first remedy, they can reconsider facts as well as law, and their existence is a principal ground on which the writ court exercises its discretion to refuse relief.

Why they belong in the module on remedies

Because they are the remedy the citizen actually uses. For every writ petition there are many appeals under a taxing Act, revisions under a rent Act and departmental appeals under service rules, and the writ jurisdiction is designed on the assumption that they exist.

The four kinds

Appeal. A rehearing, ordinarily on facts and law, before a higher authority or a tribunal. The appellate authority may substitute its own decision, which no writ court can do.

Revision. A narrower power, usually to satisfy the revising authority about the legality or propriety of an order, often exercisable suo motu, and often confined to jurisdictional questions.

Review. By the same authority, on limited grounds: an error apparent on the record, new evidence which could not have been produced earlier, or a mistake.

Reference. A question of law referred by the tribunal to a higher court, which answers it and returns the matter.

The features that matter for judicial review

They can reconsider facts. This is the great advantage, because a writ court cannot: Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477.

They must ordinarily be exhausted. Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, AIR 1999 SC 22, states the rule and its three exceptions, and [Alternative Remedies] works it.

A complete statutory code may exclude the writ. Titaghur Paper Mills Co. Ltd. v. State of Orissa, AIR 1983 SC 603, holds that where a taxing statute provides a complete machinery by which an assessee can effectively raise the question of the validity of an assessment, that machinery must be used, and that the use of the machinery provided by the Act, and not the result of that use, is the test.

The doctrine of merger. Once an appeal is decided, the original order merges in the appellate order, so a writ petition must attack the appellate order: Collector of Customs, Calcutta v. East India Commercial Co. Ltd., AIR 1963 SC 1124.

Facts. The Collector confiscated fifty drums of imported mineral oil and imposed a penalty. The importer's appeal was dismissed by the Central Board of Revenue, which sat outside the Calcutta High Court's jurisdiction. The High Court held that it could not issue a writ against the Board but could still make an order against the Collector.

In one line

For a very large class of disputes the first court is not a court at all, and after 1997 the High Court sits above it rather than instead of it.

In the wording a student can write in an exam: an administrative tribunal is the court of first instance for the disputes assigned to it, and a person aggrieved must apply to it before invoking the writ jurisdiction; sections 19 to 22 of the Administrative Tribunals Act 1985 govern the application, the exhaustion of departmental remedies, limitation and procedure, and after L. Chandra Kumar the tribunal's decision is subject to scrutiny by a Division Bench of the High Court.

The sections that govern an application

Section 19. A person aggrieved by an order pertaining to a service matter may make an application to the Tribunal, in the prescribed form, with the prescribed fee.

Section 20. The Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant has availed of all the remedies available under the relevant service rules. A person is deemed to have done so where a final order has been made rejecting his appeal or representation, or where no final order has been made and six months have expired since the appeal was preferred or the representation made. A memorial to the President or the Governor is not one of the remedies which are available unless the applicant has elected to submit it.

Section 21. The Tribunal shall not admit an application unless it is made within one year of the final order, or within one year of the expiry of the six months where no final order has been made; and there is provision for admitting an application after that period on sufficient cause.

Section 22. The Tribunal is not bound by the Code of Civil Procedure but is guided by the principles of natural justice, has power to regulate its own procedure including the fixing of places and times of hearing, and has the powers of a civil court in respect of summoning and examining witnesses, requiring the discovery and production of documents, receiving evidence on affidavit, issuing commissions and reviewing its decisions.

Why section 22 matters to this paper

Because it is a statutory adoption of everything in Module III. A tribunal freed from the Code is not freed from fairness: it must give notice, disclose the material, hear the applicant and give reasons, and a failure is both a breach of natural justice and a breach of section 22.

What survives of the tribunal after L. Chandra Kumar

L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, worked in [Tribunals, Article 323A and L. Chandra Kumar], holds that the tribunals remain courts of first instance in their fields and that litigants must go to them first, but that their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls, and that no appeal lies directly to the Supreme Court under Article 136 from a tribunal.

In one line

A writ is worth what its enforcement is worth, and what enforces it is the power to send an officer to prison.

In the wording a student can write in an exam: civil contempt is defined by section 2(b) of the Contempt of Courts Act 1971 as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking given to a court; it is punishable under section 12 with simple imprisonment up to six months or a fine up to two thousand rupees, or both, subject to the power to accept an apology.

The provisions

Section 2(a). Contempt of court means civil contempt or criminal contempt.

Section 2(b). Civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking given to a court.

Section 2(c). Criminal contempt means the publication of any matter or the doing of any other act which scandalises or tends to scandalise or lowers or tends to lower the authority of any court, or prejudices or interferes or tends to interfere with the due course of any judicial proceeding, or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner.

Section 10. The High Court has the same jurisdiction, powers and authority in respect of contempt of courts subordinate to it as it has in respect of contempt of itself.

Section 11. A High Court has jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty is within or outside those limits. For administrative law this matters because the officer who disobeys is often posted at a district headquarters or at a State secretariat far from the seat of the court, and section 11 removes the argument that he is beyond its reach.

Section 12(1). A contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both, with a proviso that the accused may be discharged or the punishment remitted on an apology made to the satisfaction of the court; and an Explanation that an apology shall not be rejected merely because it is qualified or conditional if it is made bona fide.

Section 12(3). Where a person is found guilty of civil contempt and the court considers that a fine will not meet the ends of justice and that imprisonment is necessary, it shall direct that he be detained in a civil prison for a period not exceeding six months.

In one line

Article 141 makes one decision bind the whole country, and Article 142 lets the Supreme Court do whatever complete justice requires.

In the wording a student can write in an exam: Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India; Article 142(1) provides that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and that such a decree or order shall be enforceable throughout the territory of India.

Why they belong in a chapter on remedies

Because they decide what a remedy is worth. A writ quashing one order helps one person; Article 141 turns the reasoning into law for everybody. And Article 142 is the source of the relief that no writ names, which is how the Supreme Court has been able to fashion remedies in public interest and constitutional cases.

Article 141

"The law declared." Not the decision and not the order, but the proposition of law, which is the ratio decidendi. Obiter dicta are not binding, though they carry great weight.

"By the Supreme Court." A High Court's decisions bind courts subordinate to it by the hierarchy and by Article 227, not by Article 141.

"Shall be binding on all courts within the territory of India." It binds every court, and by extension tribunals. It has been held to refer to courts other than the Supreme Court itself, so the Supreme Court is not bound by its own decisions, though it departs from them only for good reason and ordinarily through a larger bench.

The consequence for administrative law. A ruling that a particular kind of clause does not oust the writ jurisdiction, or that a particular ground of review exists, is law throughout India from the moment it is declared. That is why a single decision such as L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, could change the position of every tribunal in the country at once.

Article 142

Clause (1). The power to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, enforceable throughout India in such manner as may be prescribed by or under a law made by Parliament and, until such provision is made, in such manner as the President may by order prescribe.

Clause (2). Subject to any law made by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

In one line

Almost every limit on judicial review in India is one the courts have placed on themselves, and knowing why is the whole of Module IV.

In the wording a student can write in an exam: the limits of judicial review are of three kinds: constitutional limits, which the Constitution itself imposes, such as Articles 359 and 361; limits inherent in the nature of review, which is of legality and not of merits; and self-imposed limits, which are the discretionary grounds on which relief is refused, including alternative remedy, laches, res judicata, disputed questions of fact, the petitioner's conduct, academic questions and restraint in matters of policy.

MU's printed topic

MU's topic 7 is "Limits of judicial review", and on one paper the University asked for detailed notes on alternative remedies, laches and res judicata "in the context of limits on Judicial Review". So the module has a shape: three families of limit, and the discretionary family has seven or eight members.

The three families

Constitutional limits. Article 359, permitting suspension of the right to move a court during an Emergency, subject after the Forty-fourth Amendment to Articles 20 and 21. Article 361, the immunity of the President and the Governors. Articles 33 to 35, restricting the rights of the Forces and reserving certain powers to Parliament. Article 136(2), excluding Armed Forces tribunals. These are not discretionary; where they apply, the jurisdiction is affected.

Inherent limits. Review is of legality and not of merits. The court does not reappreciate evidence: Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477. It does not substitute its own decision: Tata Cellular v. Union of India, AIR 1996 SC 11. It does not decide policy: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899. These are not discretionary either; a court which crossed them would not be reviewing.

Self-imposed limits. The discretionary grounds, each with its own chapter: alternative remedies, laches, res judicata, disputed questions of fact, the petitioner's conduct, academic questions, contracts and economic policy, and the abuse of public interest litigation.

The one limit that does not exist

The jurisdiction itself cannot be taken away. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, holds that the power of review of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 is part of the basic structure. So an answer which lists ouster clauses as a limit must add at once that they do not work, which is [The Exclusionary or Ouster Clause] and [Ouster Clauses in India: Article 323A(2)(d), Kihoto and L. Chandra Kumar].

Why the self-imposed limits exist

Because the remedy is discretionary, which is [The Writ Remedy Is Discretionary, Not a Matter of Right].

In one line

If the Act gives you an appeal, use it first, unless one of three things has gone wrong.

In the wording a student can write in an exam: the existence of an adequate alternative remedy is a ground on which the writ court will ordinarily decline relief; the rule is one of policy, convenience and discretion and not of jurisdiction, and it yields where the petition is for the enforcement of a fundamental right, where there has been a violation of the principles of natural justice, or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

MU's question

Set as a short note on three papers, once expressly "in the context of limits on Judicial Review". So the answer is the rule, its character as a rule of discretion, the three exceptions, and the case in which the discretion is refused because a complete statutory code exists.

The rule and its character

The rule is not that the High Court lacks jurisdiction. State of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86, states it exactly: the rule requiring the exhaustion of statutory remedies before a writ will be granted is a rule of policy, convenience and discretion rather than a rule of law, and it does not bar relief in a proper case.

Facts. A departmental enquiry against a head constable was held by the District Superintendent of Police, who during the enquiry himself became a witness and gave evidence against the delinquent, his statement being recorded by a subordinate. He then found the constable guilty and dismissed him. The departmental appeal and revision were dismissed, and the constable moved the High Court under Article 226.

Held. The dismissal was quashed. Where the presiding officer of an enquiry is himself a witness against the delinquent, the proceedings are so contrary to natural justice that the resulting order is a nullity, and the rule about exhausting statutory remedies, being a rule of policy and discretion, does not stand in the way.

Why it matters here. It is the Indian source of both propositions: the rule is discretionary, and a nullity is not protected by it.

The three exceptions

Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, AIR 1999 SC 22.

Facts. A proceeding under the Trade and Merchandise Marks Act was challenged by writ petition before the statutory remedies under the Act had been exhausted, and it was said that the petition was premature.

Held. The existence of an alternative remedy is not an absolute bar to a petition under Article 226. It is a rule of policy, convenience and discretion, and the High Court will nevertheless entertain a petition in at least three contingencies: where the petition is filed for the enforcement of a fundamental right; where there has been a violation of the principles of natural justice; or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

In one line

There is no limitation period for a writ petition, and that is exactly why delay defeats one.

In the wording a student can write in an exam: the Limitation Act 1963 does not apply to a petition under Article 226 or Article 32, but the writ remedy is discretionary and a court will refuse relief where the petitioner has been guilty of unreasonable delay; what is unreasonable depends on the facts, the court takes the period prescribed for an analogous suit as a guide, and delay is fatal where third-party rights have intervened or where the delay is unexplained.

MU's spelling

The University prints the head as "Latches" on three papers. The word is laches, from the old French laschesse, meaning slackness, and it means unreasonable delay in asserting a right. The misspelling is MU's; the doctrine is the same.

Why there is no limitation period

Because Article 226 prescribes none and the Limitation Act 1963 applies to suits, appeals and applications to courts under the Code, not to constitutional remedies. Section 3 of that Act requires every suit, appeal and application made after the prescribed period to be dismissed although limitation has not been set up as a defence, and section 5 allows an appeal or application, other than one under Order XXI of the Code, to be admitted after the period on sufficient cause. Neither section governs a writ petition, and there is no third section that does.

So the control is discretionary, and the court supplies it.

The rule

Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898.

Facts. Sales tax collected by the petitioners from their customers and paid to the State was ordered to be refunded to them on condition that they passed it on to the customers. They did not, and the officer forfeited the amount under section 21(4) of the Bombay Sales Tax Act 1953 in March 1958. Their writ petition to the High Court was dismissed and their properties were attached in December 1958. In 1967, after another party had succeeded in having section 21(4) declared invalid, they came to the Supreme Court under Article 32.

Held. The petition was dismissed for laches. Article 32 gives the right to move the Court and the State can place no hindrance in the way of an aggrieved person, but once the matter has reached the Court the extent or manner of interference is for the Court to decide. The Court has put itself under restraint, and it will not allow a stale claim to be agitated years later merely because somebody else has since succeeded on the same point.

Why it matters here. It is the leading authority, and it explains the paradox: the right to move is guaranteed, the manner of interference is not.

In one line

A point decided against you in one writ petition cannot be raised again in another, because there has to be an end of litigation.

In the wording a student can write in an exam: where a High Court dismisses a petition under Article 226 after hearing the matter on the merits, a subsequent petition to the Supreme Court under Article 32 on the same facts and for the same relief by the same party is barred by the general principle of res judicata; the principle rests on public policy and the need for finality, and it applies although Article 32 is itself a fundamental right.

MU's question

Res judicata is set on five of the eight papers, more often than any other item in Module IV: as a short note by itself, paired with laches, and once expressly in the context of limits on judicial review. So it needs the case, the reasons, the exceptions and the constructive branch, which is the next chapter.

The provision it comes from

Section 11 of the Code of Civil Procedure 1908 provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

Section 11 in terms applies to suits. What applies to writ petitions is the general principle behind it.

The case

Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457.

Facts. Petitioners whose writ petitions under Article 226 had already been dismissed by a High Court came to the Supreme Court under Article 32 on the same facts and for the same reliefs.

Held. Where a High Court dismisses a petition under Article 226 after hearing the matter on the merits, on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified, a later petition to the Supreme Court under Article 32 on the same facts and for the same relief by the same party is barred by the general principle of res judicata. The rule rests on public policy and on the need for finality, and it applies although Article 32 is itself a fundamental right, because the guarantee is of the right to move the Court and not of a right to have the same question decided twice. It does not apply where the earlier petition was dismissed in limine without a speaking order, or on the ground of laches or of an available alternative remedy, because there has then been no decision on the merits.

In one line

A ground you could have taken and did not is treated as though it had been taken and rejected.

In the wording a student can write in an exam: constructive res judicata, embodied in Explanation IV to section 11 of the Code of Civil Procedure 1908, treats any matter which might and ought to have been made a ground of attack or defence in a former proceeding as a matter directly and substantially in issue in it; the principle applies to writ petitions, so a petitioner who omits an available ground cannot raise it in a second petition on the same cause of action.

Why the doctrine exists

Because otherwise there would be no end. A litigant could challenge an order on ground A, lose, and file again on ground B, and again on ground C. Every ground would be a fresh petition, and the finality that res judicata exists to produce would be an illusion.

What "might and ought" means

Two conditions, and both are needed.

Might. The ground must have been available at the time: the facts known or knowable, the law as it then stood.

Ought. It must have been a ground the party should in the ordinary course have taken, because it belonged to the same attack on the same order.

So a ground founded on facts discovered later, or on a decision given later which changed the law, is not caught, because it could not have been taken.

Successive petitions on the same order

A second petition on the same ground is barred by res judicata proper: Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457.

A second petition on a different but available ground is barred by constructive res judicata.

A second petition on a ground that could not have been taken is not barred.

A second petition after a dismissal in limine without reasons is not barred, because nothing was decided.

A second petition after withdrawal without liberty is ordinarily not entertained, though the principle there is abuse of process rather than res judicata.

The exception for a continuing wrong

Where the grievance is a continuing wrong, each day gives a fresh cause of action, so a fresh petition is not on the same cause of action at all. That is the reasoning of Ramchandra Shankar Deodhar v. State of Maharashtra, AIR 1974 SC 259, in the context of delay, and it applies here for the same reason.

The limits of the doctrine

It does not apply to a pure question of law affecting the public. Courts have been reluctant to shut out a constitutional challenge of general importance merely because an earlier litigant did not take the point.

In one line

A clause saying that a decision shall be final ends the appeals; it does not end the High Court.

In the wording a student can write in an exam: a finality clause is a statutory provision that a decision or order of an authority shall be final, or shall not be called in question in any court; it excludes the ordinary remedies of appeal and suit and it prevents review of an error within jurisdiction, but it does not affect the jurisdiction of the High Courts under Articles 226 and 227 or of the Supreme Court under Article 32, and it gives no protection to an order made without jurisdiction.

MU's question

Set as a short note on three papers, twice as "Finality clause" and once as "Finality Clauses". The University sets "Exclusionary clause" and "Conclusive evidence clause" separately, so the three are distinct heads and this chapter must not blur them.

What such a clause achieves

It ends the statutory appeals. If the Act says the decision of the appellate authority shall be final, no further appeal lies under the Act.

It bars a civil suit, by force of section 9 of the Code of Civil Procedure, which gives the courts jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

It protects an error within jurisdiction. If the authority had power and merely decided wrongly, the clause does its work.

What it does not achieve

It does not touch Articles 226 and 227. A constitutional jurisdiction cannot be taken away by an ordinary statute, and after L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, it cannot be taken away at all, being part of the basic structure.

It does not protect an order made without jurisdiction. This is the proposition that decides most cases.

Union of India v. Tarachand Gupta and Bros., AIR 1971 SC 1558.

Facts. An importer held a licence to import motorcycle and scooter parts and accessories under one entry of the Import Trade Control Policy. The customs authorities treated the consignment as an import of motorcycles and scooters in a completely knocked down condition, which a different entry permitted only to approved manufacturers, and confiscated the goods. The Act contained a provision making the decision of the customs authorities final.

Held. The confiscation was quashed. Under a licence for parts, all the Collector had to ascertain was whether the goods were parts and accessories; by asking instead whether the parts, if put together, would make complete vehicles, he asked a question the entry did not permit him to ask and so travelled outside his jurisdiction. A finality clause bars a suit or proceeding against an order made under the Act; it does not protect an order made in disregard of the provisions of the Act or in excess of jurisdiction, because such an order is not one made under the Act at all.

In one line

An ouster clause is a legislature telling the courts to stay out, and in India it has never worked against the constitutional courts.

In the wording a student can write in an exam: an exclusionary or ouster clause is a statutory provision which purports to exclude the jurisdiction of the courts over a class of decisions, in words such as that no court shall have jurisdiction in respect of any matter connected with a stated subject; such clauses are construed strictly, they cannot exclude the jurisdiction of the High Courts under Articles 226 and 227 or of the Supreme Court under Article 32, and they give no protection to a decision which is a nullity.

MU's word

The University prints the head as "Exclusionary clause" on two papers. Textbooks say ouster clause, and older writers say privative clause. All three mean the same thing, and an answer should say so.

The varieties, from weakest to strongest

Finality. The decision shall be final. Dealt with in [The Finality Clause].

No appeal. No appeal shall lie from an order made under this section.

No suit. No suit shall lie in any civil court in respect of anything done under this Act.

No court shall have jurisdiction. The strongest ordinary form, and the one MU means.

A conclusive evidence clause, which attacks the fact-finding rather than the jurisdiction, dealt with in [The Conclusive Evidence Clause].

A constitutional ouster, inserted by amendment, which is the strongest of all and which is dealt with in [Ouster Clauses in India: Article 323A(2)(d), Kihoto and L. Chandra Kumar].

Why they fail

Because of the presumption against ouster. A statute is presumed not to take away the jurisdiction of the superior courts, and clear words are required.

Because a nullity is not a decision. Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147, worked in [Anisminic and What Became of Ouster Clauses]: determination means a real determination and does not include a purported determination which in law has no existence, so a person saying that a determination is a nullity is not calling a determination in question at all.

Because an order outside the Act is not an order under the Act. Union of India v. Tarachand Gupta and Bros., AIR 1971 SC 1558.

Because the jurisdiction is constitutional. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, holds that the power of judicial review of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 is part of the basic structure and cannot be ousted even by a constitutional amendment.

What an ouster clause can lawfully do

An honest answer does not say that such clauses are worthless.

In one line

Anisminic decided that a clause saying a determination shall not be questioned protects a determination, and that a nullity is not a determination.

In the wording a student can write in an exam: Anisminic Ltd v Foreign Compensation Commission held that a statutory provision that a determination shall not be called in question in any court of law does not protect a determination which is a nullity, because a determination means a real determination and does not include a purported determination which in law has no existence; and it held that a tribunal may have jurisdiction to enter on an enquiry and yet do something in the course of it which makes its decision a nullity.

The case

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147, [1968] UKHL 6, decided 17 December 1968.

Facts. Anisminic owned a mining property in Egypt, worth over four million pounds, which was occupied and damaged during the hostilities of 1956, then sequestrated by the Egyptian Government, and in 1957 sold to an Egyptian organisation referred to as TEDO. In 1959 the United Kingdom and the United Arab Republic made a treaty under which a lump sum was paid to the British Government, and the Foreign Compensation (Egypt) (Determination and Registration of Claims) Order 1959 laid down who might claim from that fund. The Foreign Compensation Commission rejected Anisminic's claim, because it treated the nationality of the successor in title, TEDO, as a condition of the claim, although on the true construction of the Order it was not. Section 4(4) of the Foreign Compensation Act 1950 provided that the determination by the Commission of any application made to them under the Act shall not be called in question in any court of law.

Held. The determination was a nullity and the ouster clause did not protect it. Lord Reid reasoned that determination means a real determination and does not include a purported determination which in the eyes of the law has no existence because it is a nullity; so a person who seeks to show that a determination is a nullity is not questioning the purported determination, he is maintaining that it does not exist as a determination, and it is one thing to question a determination which does exist and quite another to say that there is nothing to be questioned. A tribunal may have jurisdiction to enter on an enquiry and yet do something in the course of it which makes its decision a nullity, such as asking the wrong question, taking into account something it was not entitled to consider, or refusing to take into account something it was required to consider. And there are no degrees of nullity: a decision is a nullity or it is not.

In one line

India has tested ouster clauses in every form, including one written into the Constitution itself, and none of them has kept the courts out.

In the wording a student can write in an exam: an ordinary Indian ouster clause cannot exclude the jurisdiction of the High Courts under Articles 226 and 227 or of the Supreme Court under Article 32; a clause inserted by constitutional amendment fares no better, because paragraph 7 of the Tenth Schedule was struck down in Kihoto Hollohan for want of ratification and for taking away judicial review, and Article 323A(2)(d), Article 323B(3)(d) and section 28 of the Administrative Tribunals Act 1985 were struck down in L. Chandra Kumar because review by the constitutional courts is part of the basic structure.

The three attempts

One, the ordinary statutory clause. Dealt with in [The Finality Clause] and [The Exclusionary or Ouster Clause], and answered by Union of India v. Tarachand Gupta and Bros., AIR 1971 SC 1558.

Two, the constitutional amendment inserting an ouster. Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686.

Facts. The Tenth Schedule, inserted by the Constitution (Fifty-second Amendment) Act 1985, disqualifies a member of Parliament or of a State legislature for defection. Paragraph 6 makes the decision of the Speaker or Chairman on such a question final. Paragraph 7 provided that notwithstanding anything in the Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member.

Held. Paragraph 7 was struck down. It sought to take away the jurisdiction of the High Courts under Article 226 and of the Supreme Court under Article 32 in a matter, and so made a change in Articles 136, 226 and 227, which required ratification by not less than one-half of the States under the proviso to Article 368(2); that had not been obtained. Paragraph 7, in so far as it takes away the power of judicial review, which is itself one of the basic features of the Constitution, is liable to be struck down. The rest of the Tenth Schedule survived on the doctrine of severability. The Speaker acting under paragraph 6 acts as a tribunal, so the decision is subject to judicial review, though the review is confined to jurisdictional errors, that is violations of a constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity, and it can be exercised only after the decision is made.

Why it matters here. It shows that even the constituent power cannot oust the courts by a side wind, and it shows what is left when a decision is made final by the Constitution: a narrow but real review.

Three, the constitutional authorisation of a statutory ouster. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, worked in [Tribunals, Article 323A and L. Chandra Kumar], struck down clause (2)(d) of Article 323A, clause (3)(d) of Article 323B and section 28 of the Administrative Tribunals Act 1985 to the extent that they exclude the jurisdiction of the High Courts and the Supreme Court, because that jurisdiction is part of the basic structure.

In one line

A conclusive evidence clause does not tell the court to keep out; it tells the court what it must believe, which is a subtler way of achieving the same thing.

In the wording a student can write in an exam: a conclusive evidence clause provides that a certificate, order or document shall be conclusive evidence of the facts stated in it, so that on proof of that document the court must regard those facts as proved and may not receive evidence to disprove them; such clauses are construed strictly, are confined to the facts they expressly cover, and cannot preclude a court from examining whether the document was issued by a competent authority, in accordance with the procedure required, and within the power conferred.

MU's question

Set as a short note on two papers, in the words "Conclusive Evidence Clause" and "Conclusive evidence clause", once alongside the finality clause. It is one of the least explained topics in this subject, which is a reason to be precise about it.

What the words mean

The idea comes from the law of evidence. Section 2(1)(b) of the Bharatiya Sakshya Adhiniyam 2023 defines conclusive proof: when one fact is declared by the Adhiniyam to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

A conclusive evidence clause in an administrative statute borrows that device. It says that a stated document shall be conclusive evidence of stated facts, so that once the document is produced the facts are closed.

Why a legislature uses one

To make an administrative act unassailable in collateral proceedings. A certificate of recovery, a notification of acquisition, a certificate of service of notice.

To protect transactions from being unravelled. A certificate of sale in a revenue recovery, on which third parties have relied.

To avoid a trial of what happened. Where the evidence would be scattered across departments and years.

Why it is dangerous

Because it attacks a court's function directly. An ouster clause says the court has no jurisdiction, and the court can answer that it has. A conclusive evidence clause concedes the jurisdiction and removes the material, which is harder to answer, because the court is left with a case it cannot investigate.

How courts read them down

Strict construction. The clause is confined to the precise facts it names. A certificate declared conclusive evidence of the amount due is not conclusive of the liability to pay.

It does not cover the validity of the document itself. Whether the certificate was issued by the officer authorised to issue it, in the form prescribed, after the conditions precedent were satisfied, is always open, because the clause presupposes a valid certificate.

In one line

Some decisions are for the government because they are political or economic choices, and a court that decided them would be governing.

In the wording a student can write in an exam: a court will not review the wisdom of a policy decision, an economic choice, a matter of defence or foreign affairs, or a question the Constitution commits to another organ; it will review whether the decision was within power, taken by the competent authority, on relevant considerations and in accordance with a fair procedure, so the limit is on the intensity of review rather than on its availability.

The proposition and its source

Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that although the separation of powers is not recognised in India in its absolute rigidity, the Constitution makers meticulously defined the functions of the organs of the State, that the legislature, executive and judiciary must function within their own spheres, and that while the powers of the legislature and the executive are subject to judicial restraint, the only check on the court's own exercise of power is the self-imposed discipline of judicial restraint; the court cannot direct the executive on matters of policy or act as an appellate authority over it.

The categories

Economic and fiscal policy. Rates of tax, subsidies, price control, the choice between public and private provision. Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277, is the standard example: price fixation is legislative in character, no hearing is owed, and review is confined to asking whether the Government acted within the four corners of the Act, took into account the matters the Act required, and was not so arbitrary that no reasonable authority could have fixed that figure.

Defence and national security. Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374, holds that the decision whether the requirements of national security outweigh a duty of fairness is for the Government and not for the courts, because the Government alone has access to the necessary information and the judicial process is unsuitable for such decisions; but that where a decision is challenged as unfair, the Government must produce evidence that it was in fact based on grounds of national security.

Foreign affairs and treaty-making.

The choice of a policy among lawful alternatives. Whether to nationalise, whether to build a dam, whether to admit private universities.

Matters committed by the Constitution to another organ. The internal proceedings of a legislature, subject to Article 122 and Article 212; the President's satisfaction in matters where the Constitution makes it final.

What is still reviewable

Power. Whether the authority had it.

In one line

A writ court decides on affidavits, so where the case turns on whose account is true it sends the parties to a court that can hear witnesses.

In the wording a student can write in an exam: the writ jurisdiction is summary and is exercised on affidavits without oral evidence or cross-examination, so a court will ordinarily decline to entertain a petition which raises seriously disputed questions of fact and will relegate the petitioner to a suit or to the statutory remedy; the rule is one of discretion, and a court may decide a question of fact where the material is documentary, where the facts are admitted, or where the dispute is not genuine.

Why the limit exists

Because the procedure cannot support the enquiry. There is no examination in chief, no cross-examination, no assessment of demeanour and no discovery in the ordinary sense. A judge reading two contradictory affidavits has no means of preferring one. A civil court, or a statutory tribunal with the power to summon witnesses, has.

What is a disputed question of fact

Genuinely disputed. A denial in an affidavit is not enough; the court looks at whether the dispute is real and material.

Material to the relief. A dispute about a peripheral fact does not matter.

Not capable of resolution on documents. Where the record settles it, there is no dispute in the relevant sense.

When a writ court decides facts anyway

Where the facts are admitted or emerge from the record.

Where the dispute is raised only to defeat the petition. A bare denial without particulars is disregarded.

In habeas corpus. Liberty requires the court to decide, and it does so on the return and on affidavits, calling for records where necessary.

Where jurisdiction depends on the fact. A jurisdictional fact must be decided by the court, however factual it is, which is [Jurisdictional Error and the Collateral Fact Doctrine].

In public interest litigation. The court appoints a commissioner to find the facts, which is the device in Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, and it is a deliberate departure from the ordinary rule.

Where the State does not produce the record. An authority which withholds the file cannot complain that the facts are disputed.

The connection with the fact and law distinction

This limit is procedural; the limit in [The Law and Fact Distinction] is jurisdictional. Even where a writ court could conveniently decide a fact, Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, prevents it from reviewing a finding of fact made by a tribunal, unless there was no evidence at all. So there are two separate reasons why facts are difficult in a writ petition, and a good answer keeps them apart.

In one line

A court decides live disputes, so a petition that has stopped mattering is dismissed however interesting the question is.

In the wording a student can write in an exam: a court will not decide an academic, hypothetical or infructuous question, that is one in which no live dispute survives between the parties and no relief can operate; but it may decide such a question where it is of general public importance, where it is likely to recur and evade review, or where the decision will govern other pending matters.

The three related ideas

Academic. The question has no practical consequence for the parties, either because it was hypothetical from the beginning or because it has ceased to matter.

Infructuous. Something has happened which makes the relief impossible or pointless: the examination is over, the appointment has been made, the property has been sold, the term of office has expired.

Moot. The English and American word for the same thing.

Why the limit exists

Because a court decides disputes. Advisory opinions in India belong to Article 143, and only the President may ask for one.

Because argument is worse without a stake. A party with nothing to gain will not argue as well, and the court's decision will be the poorer.

Because relief is the point. The writ jurisdiction is remedial, and where no remedy can operate there is nothing for the court to do.

Because of the docket. Time spent on a dead case is taken from a live one.

When a court decides anyway

Where the question is of general public importance. State of Uttaranchal v. Balwant Singh Chaufal, AIR 2010 SC 2550, is the standing example: the appointee had ceased to hold the office of Advocate General by the time the matter reached the Supreme Court, and the Court nevertheless used the occasion to review the whole course of public interest litigation and to issue directions to all courts.

Where the wrong is capable of repetition yet evading review. Short-duration orders, such as a ban on an assembly, expire before a petition can be heard, and if mootness were absolute they could never be tested.

Where other cases depend on it. A question arising in many pending matters is decided even though the particular petitioner has lost interest.

Where a declaration still has value. A person illegally detained and since released may still get a declaration and compensation: Rudul Sah v. State of Bihar, AIR 1983 SC 1086.

The relation to standing

An academic question is often a standing problem in disguise. A petitioner who has ceased to be affected is in much the same position as one who was never affected, and Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, AIR 1976 SC 578, is the case on the second. The difference is that a public interest petitioner never had a personal stake and is heard because of the class he represents, so mootness does not touch him in the same way.

In one line

A discretionary remedy is refused to a petitioner who has not behaved properly, and the commonest way of not behaving properly is to hide something from the court.

In the wording a student can write in an exam: the writ jurisdiction being discretionary, relief may be refused where the petitioner has suppressed material facts, has come to court with unclean hands, has acquiesced in the act complained of, has waived his objection, has taken a benefit under the very order he challenges, or has approached the court after inordinate delay.

Suppression of material facts

The rule is that a petitioner invoking a discretionary jurisdiction must make a full and candid disclosure of all facts material to the relief he seeks, including facts against him. A petition which conceals an earlier petition, an adverse order, an alternative remedy already pursued, or a fact which would have influenced the grant of interim relief is liable to be dismissed on that ground alone, and often with costs.

Why the rule is strict. Because the court acts on affidavits and often grants interim relief ex parte. The only protection against being misled is the duty of candour.

What is material. Anything that might reasonably have affected the court's decision to entertain the petition or to grant interim relief; not every fact.

Unclean hands

A petitioner who has himself acted illegally in the transaction may be refused relief. A person who obtained a licence by a false declaration cannot complain that its cancellation was procedurally defective, though the principle is applied with care where a fundamental right is engaged.

Acquiescence and waiver

Acquiescence is standing by while the act complained of is done or acted upon, and it is close to laches. Chairman, U.P. Jal Nigam v. Jaswant Singh, AIR 2007 SC 924, refused relief to employees who had accepted retirement, taken their benefits and come to court only after others succeeded, holding that a person who is not vigilant and acquiesces cannot be given the same relief as one who was vigilant.

Waiver is the abandonment of a known right. It applies squarely to bias: G. Sarana v. University of Lucknow, AIR 1976 SC 2428, holds that a candidate who knew the facts, appeared before the committee and took his chance cannot afterwards question its constitution, applying Manak Lal v. Dr. Prem Chand, AIR 1957 SC 425.

But a fundamental right cannot be waived. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, holds that there can be no estoppel against the enforcement of a fundamental right, so an undertaking not to claim one does not bar the petition.

That is the distinction an answer must draw: a procedural objection can be waived; a fundamental right cannot.

In one line

Government contracting is reviewable because the State must be fair, and it is reviewed lightly because the State must be able to contract.

In the wording a student can write in an exam: a decision of the State or its instrumentality in the award of a contract is subject to judicial review under Article 14 for arbitrariness and for departure from the declared criteria, but the court reviews the manner in which the decision was made and not the decision itself, does not sit in appeal on the terms of the invitation to tender, and interferes only where the process is illegal, irrational or procedurally improper.

The two propositions in tension

One, the State must act fairly even in contract. Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628, holds that where the Government or its instrumentality lays down a standard or norm for entering into a contract, it is not free to depart from it at pleasure, and acceptance of a tender that does not satisfy the declared eligibility is arbitrary and violates Article 14.

Two, the State must be able to contract. Tata Cellular v. Union of India, AIR 1996 SC 11, holds that the modern trend points to judicial restraint; that the court does not sit as a court of appeal but reviews the manner in which the decision was made; that it lacks the expertise to correct an administrative decision and interference would mean substituting its own; that the terms of the invitation to tender are not open to judicial scrutiny, being in the realm of contract; and that the Government must have freedom of contract, subject to fair play in action.

Every tender case is an argument about where between those two the facts fall.

What is reviewable

Departure from the declared criteria. R.D. Shetty.

Change of criteria after the bids are in.

Bias or a conflict of interest in the evaluating body.

Mala fides and improper purpose.

A decision on no material, or manifestly arbitrary.

Breach of a mandatory statutory procedure, such as a requirement of tender where the rules prescribe it.

What is not reviewable

The terms of the invitation. What eligibility to prescribe, what conditions to impose, what weight to give price against quality.

The evaluation of technical merit, unless it is perverse.

The decision to negotiate rather than accept the highest bid, where the object is to get the best price for public property: Food Corporation of India v. Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601.

The choice of economic policy. Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277.

A change of policy defeating an expectation, save on Wednesbury grounds: Punjab Communications Ltd. v. Union of India, AIR 1999 SC 1801.

In one line

Nothing stops a court from taking over a department except the court's own decision not to, and that is what judicial restraint means.

In the wording a student can write in an exam: the separation of powers is not recognised in India in its absolute rigidity, but the Constitution defines the functions of the three organs and each must act within its own sphere; while the powers of the legislature and the executive are subject to judicial restraint, the only check on the judiciary's exercise of power is the self-imposed discipline of judicial restraint, and it is that discipline which produces the limits in this module.

The proposition and its case

Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Facts. Unsuccessful candidates for admission to the two government medical colleges in Jammu and Kashmir challenged the selection, relying on earlier directions of the High Court which had told the State to entrust selection to an independent statutory body and, until that was done, to a body free from executive influence. The State issued orders constituting a competent authority, and the question was how far a court may go in directing the executive on a matter of policy.

Held. Although the doctrine of 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 of the State, and the legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and the executive, and the expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While the exercise of powers by the legislature and the executive is subject to judicial restraint, the only check on the court's own exercise of power is the self-imposed discipline of judicial restraint.

Why it matters here. It is the sentence that explains Module IV. The limits are not imposed on the courts by anybody; they are the courts' own answer to the fact that nothing else limits them.

The Indian version of the separation of powers

Not rigid. Ministers sit in the legislature; the executive makes law by delegation; tribunals adjudicate; and the courts make law through precedent.

But real. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, struck down a constitutional amendment because it decided an election dispute itself instead of leaving it to a court applying the law, which is an exercise of judicial power by the constituent body.

And a basic feature. Named among the basic features in Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461.

In one line

The courts opened the door to anybody acting for those who could not come, and then had to write rules to keep out everybody else.

In the wording a student can write in an exam: public interest litigation is liable to abuse by busybodies, by persons with private, political or oblique motives, and by litigants dressing a private dispute as a public cause; the courts have responded by verifying the credentials and motives of the petitioner, by requiring substantial public interest, by imposing exemplary costs, and by issuing guidelines to all courts in State of Uttaranchal v. Balwant Singh Chaufal.

The forms of abuse

The busybody. A person with no interest and no connection, litigating for publicity or from officiousness. Judges have coined a name for the class: what is filed as public interest litigation is in truth publicity interest litigation, and the abuse of the public interest jurisdiction by such a petitioner is what the later guidelines were written to stop.

The proxy. A petition financed by a rival, a defeated tenderer or a political opponent.

The private dispute in public clothes. A service grievance, a contractual claim or a property dispute pleaded as a public interest matter to escape limitation or an alternative remedy.

Blackmail litigation. A petition filed to obtain a stay and then settled.

The petition that harms those it claims to protect. A challenge to a project which the affected community wants.

The first judicial response

Janata Dal v. H.S. Chowdhary, AIR 1993 SC 892.

Facts. An advocate who was a stranger to the criminal proceedings arising out of a defence procurement matter filed a revision petition seeking to have the proceedings quashed, describing it as public interest litigation. The question was whether a stranger could invoke the criminal jurisdiction in the name of the public interest.

Held. The petition was rejected. Public interest litigation is intended for the enforcement of the rights of persons who are unable to approach the court, and the relaxation of standing does not turn the courts into a forum for a busybody, a meddlesome interloper or a person with a personal, political or oblique motive. Only a person acting bona fide and having sufficient interest may be allowed to move the court, and the court must satisfy itself about the credentials and the motive of the petitioner.

Why it matters here. It supplies the vocabulary, and it makes the enquiry into the petitioner a threshold question rather than an afterthought.

The guidelines

State of Uttaranchal v. Balwant Singh Chaufal, AIR 2010 SC 2550.

Facts. A public interest petition challenged the appointment of an Advocate General on the ground that he was over the age of sixty-two. By the time the matter reached the Supreme Court the appointee had ceased to hold office, and the Court used the occasion to review the whole course of public interest litigation in India and the abuses that had grown around it.

In one line

Two provisions of the Constitution close the court's door on their own terms: one during an Emergency and one for the President and the Governors.

In the wording a student can write in an exam: Article 359 permits the President, while a Proclamation of Emergency is in operation, to declare that the right to move any court for the enforcement of such rights conferred by Part III as may be mentioned shall remain suspended, but after the Forty-fourth Amendment such an order cannot extend to Articles 20 and 21; Article 361 provides that the President and the Governors are not answerable to any court for the exercise and performance of the powers and duties of their office and that no criminal proceedings shall be instituted or continued against them while in office.

Article 359

What it does. It does not suspend the rights themselves; it suspends the right to move a court to enforce those mentioned in the order, for the period of the Emergency or a shorter period stated.

What it produced. Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.

Facts. A Presidential order of 27 June 1975 suspended the right of any person to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22. Persons detained under the Maintenance of Internal Security Act 1971 nevertheless obtained relief in habeas corpus petitions before several High Courts, and the State appealed.

Held. By majority, no person had locus standi to move a writ petition for habeas corpus to challenge the legality of a detention while the order was in force, because Article 21 was the sole repository of the right to life and personal liberty and the right to move a court to enforce it had been suspended. Justice H.R. Khanna dissented, holding that the sanctity of life and liberty is not the gift of the Constitution and that the State has no power to deprive a person of life or liberty without the authority of law even in an emergency.

Why it matters here. It is the only occasion on which the door was actually closed, and it is the reason the Forty-fourth Amendment was passed.

What the Forty-fourth Amendment did. It amended Article 359 so that an order under it cannot suspend the enforcement of the rights conferred by Articles 20 and 21. So a habeas corpus petition alleging deprivation of personal liberty otherwise than by procedure established by law is maintainable even during an Emergency.

Article 358, which is often confused with it

Article 358 suspends the operation of Article 19 itself during a Proclamation of Emergency declared on the ground of war or external aggression, so laws made and executive action taken during that period cannot be questioned on the ground that they violate Article 19.

In one line

Every limit in this module is one the courts accept; the one limit they will not accept is a limit on themselves.

In the wording a student can write in an exam: the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is an integral and essential feature of the Constitution and part of its basic structure, so it cannot be excluded by ordinary legislation and cannot be destroyed even by an amendment of the Constitution.

The proposition and its authority

L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, holds that the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is part of the basic structure and cannot be ousted, so clause (2)(d) of Article 323A, clause (3)(d) of Article 323B and section 28 of the Administrative Tribunals Act 1985 are unconstitutional to the extent that they exclude that jurisdiction.

That single sentence closes Module IV, and it is why the topic is the last chapter of the limits group.

How the proposition was built

Kesavananda supplied the limit on amendment. Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461: the amending power under Article 368 cannot alter the basic structure.

Indira Nehru Gandhi applied it to an ouster. AIR 1975 SC 2299: Article 329A(4) struck down because it decided an election dispute itself and removed it from any court.

Minerva Mills made review the guardian of the limit. AIR 1980 SC 1789: clause (4) of Article 368, which said that no amendment shall be called in question in any court on any ground, was struck down because it removed the very review by which the limitation on the amending power is enforced, and a limited amending power is itself a basic feature.

Kihoto struck down an ouster in a Schedule. (1992) 1 SCR 686: paragraph 7 of the Tenth Schedule, for want of ratification under the proviso to Article 368(2) and for taking away judicial review, which is itself a basic feature.

L. Chandra Kumar stated the proposition in terms.

And Coelho closed the last device. I.R. Coelho v. State of Tamil Nadu, decided on 11 January 2007: a law placed in the Ninth Schedule after 24 April 1973 is open to challenge for damaging the basic structure, applying the rights test and the essence of the rights test, so Article 31B gives protection but not immunity.

What can still be done

An answer which says only that review cannot be excluded is incomplete, because a great deal can still be done.

In one line

Delegated legislation is law made by somebody Parliament authorised, and there is far more of it than there is of Parliament's own law.

In the wording a student can write in an exam: delegated or subordinate legislation is legislation made by an authority other than the legislature, under a power conferred by an Act of that legislature; it is law in the full sense, is included in the definition of law in Article 13(3)(a), and is valid only so long as it is within the power conferred and within the Constitution.

MU's printed topic

MU prints topic 8 as "Judicial Review Delegated Legislation", without a preposition. The topic is the judicial review of delegated legislation, and it is the largest single topic in this book because it has its own doctrine of validity, its own grounds of attack and its own controls.

The definition, taken apart

Legislation. It lays down a general rule for the future, binding on a class, which is why it attracts no hearing: Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277.

Made by an authority other than the legislature. A ministry, a board, a corporation, a regulator, a municipality, a university.

Under a power conferred by an Act. The parent Act, also called the enabling Act. Everything about the validity of a rule begins with that Act.

Subordinate. It is inferior to the parent Act and cannot contradict it.

Why it is law

Because Article 13(3)(a) says so: law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. Three consequences follow.

It is void if it violates a fundamental right.

It binds everybody within its scope, and its breach carries whatever consequence the parent Act prescribes.

It is judicially noticed, so a court applies it without proof, once it is validly published.

What distinguishes it from an executive instruction

An instruction, circular or office memorandum which is not made under a statutory power is not law. It binds the administration internally, it may found a legitimate expectation, and it may be relied on to show arbitrariness, but it cannot create an offence, impose a tax or take away a right.

Narendra Kumar v. Union of India, AIR 1960 SC 430, shows the difference and its consequences.

Facts. The Non-ferrous Metal Control Order 1958, made under section 3 of the Essential Commodities Act 1955, fixed a maximum price and required a permit for acquisition, permits to be issued by the Controller in accordance with such principles as the Central Government might specify. Principles were communicated by a departmental letter but were never published in the Official Gazette or laid before both Houses as the Act required.

In one line

Rules, regulations, bye-laws, notifications and orders are five different things, and knowing which is which tells you who made it and how it can be attacked.

In the wording a student can write in an exam: the forms of delegated legislation are rules, ordinarily made by the Government under a rule-making section and laid before the legislature; regulations, ordinarily made by a statutory authority for its own affairs; bye-laws, made by a local or corporate body for its area or members; notifications, by which a power is exercised or a matter declared; and orders, which may be general and legislative or particular and administrative.

The five forms

Rules. Made by the Central or a State Government under a section which says that the Government may make rules for carrying out the purposes of the Act. Ordinarily required to be published in the Official Gazette and laid before the legislature.

Regulations. Ordinarily made by a statutory authority, corporation or commission for the conduct of its own affairs, sometimes with the previous approval of the Government. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331, holds that regulations framed under a corporation's constituting Act have the force of law and are not internal instructions.

Bye-laws. Made by a local authority, a municipality or a corporate body, binding within its area or on its members, and traditionally subject to a test of reasonableness stricter than that applied to rules.

Notifications. The instrument by which a power is exercised: bringing an Act into force, extending it to an area, exempting a class, fixing a rate.

Orders. The most ambiguous of the five. A control order fixing prices for a whole industry is legislative; an order cancelling one dealer's licence is administrative. The label decides nothing, and the court looks at whether the instrument lays down a general rule.

The life of a rule, in three sections of the General Clauses Act 1897

Section 21, amendment and rescission. Where a Central Act or Regulation confers a power to issue notifications, orders, rules or bye-laws, that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.

Two things follow. A rule-making authority need not look for an express power to amend. And it must amend in the same manner and with the same sanctions and conditions as the original, so a rule made after previous publication cannot be amended without previous publication.

Section 22, rules made before commencement. Where a Central Act or Regulation is not to come into force immediately on its passing, and a power is conferred to make rules or bye-laws or to issue orders with respect to the application of the Act, the establishment of a court or office, the appointment of a judge or officer, or the person by whom, the time when, the place where, the manner in which or the fees for which anything is to be done, that power may be exercised at any time after the passing of the Act; but the rules, bye-laws or orders so made shall not take effect till the commencement of the Act.

In one line

MU's question says delegated legislation is an inevitable aspect of every legal system, and the reason is that legislatures cannot do the work.

In the wording a student can write in an exam: delegated legislation is inevitable because of the pressure on legislative time, the technicality of modern subjects, the impossibility of foreseeing every contingency, the need for flexibility and rapid amendment, the need for experiment, and the need to act in an emergency; the standing criticisms are that it transfers power to the unelected, that it escapes debate, that it is made in volume without scrutiny, and that it is often unknown to those it binds.

MU's own words

The University set it as a whole question: delegated legislation is an inevitable aspect of every legal system, explain the grounds of judicial control over it. So the answer must give the reasons for inevitability, briefly, and then move to control, which is the rest of the module. A candidate who spends the whole answer on the reasons has misread the question.

The six reasons

One, pressure on legislative time. A legislature that sits for eighty days a year cannot pass an Act every time a fee changes.

Two, technicality. Effluent standards, drug schedules, capital adequacy ratios and aircraft airworthiness cannot be settled on the floor of a House.

Three, unforeseen contingencies. No draftsman can anticipate every situation, and a rule-making power lets the administration deal with what nobody foresaw.

Four, flexibility. A rule can be amended in a week; an Act cannot.

Five, experiment. A new scheme can be tried in one district and adjusted.

Six, emergency. War, epidemic, famine and financial crisis require action faster than legislation permits, and every such episode enlarges the field.

The four criticisms

Transfer of power to the unelected. The rule that binds a citizen is written by an officer.

Escape from debate. Rules are laid before the House but rarely discussed, and a laying requirement without a scrutiny mechanism is a formality.

Volume. The rules under Indian statutes vastly outnumber the sections, and nobody reads them all.

Obscurity. A rule published in a Gazette that nobody sees binds a person who cannot know it, which is why Harla v. State of Rajasthan, AIR 1951 SC 467, matters so much.

The Indian answer to the criticisms

Not to abolish the practice, which is impossible, but to control it in three ways.

Legislative control. Laying before the House and the Committees on Subordinate Legislation, which is [Legislative Control: Laying and the Scrutiny Committees].

Procedural control. Previous publication, consultation and publication in the Gazette, which are [Consultation and the Procedural Control of Rule-Making] and [Publication as a Condition of Validity].

Judicial control. The grounds in [The Grounds on Which Delegated Legislation Is Void], and above all the doctrine of excessive delegation.

In one line

India inherited the practice, entrenched it after 1950, and now makes far more law by rule than by statute. That is the growth of delegated legislation, and this chapter is about why it happened and on what constitutional footing it rests.

In the wording a student can write in an exam: delegated legislation in India rests on Articles 245 and 246, which confer plenary legislative power on Parliament and the State legislatures; a plenary power includes the power to delegate, subject to the rule that the legislature may not part with its essential legislative function, and the practice grew with the planned economy, industrial licensing, control orders and, since 1991, with the regulatory State.

The constitutional foundation

Article 245(1). Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the legislature of a State may make laws for the whole or any part of the State.

Article 245(2). No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

Article 246. Distributes legislative power between Parliament and the States by the three Lists in the Seventh Schedule.

Two consequences follow for this topic. A delegate can have no more power than the legislature had to give, so a rule on a subject outside the legislature's List is void whatever the parent Act says. And because the legislative power is plenary within its field, it carries with it the power to delegate, subject to the essential legislative function rule.

The Indian sequence

Before 1947. The Government of India Act 1935 and the wartime Defence of India Rules produced delegation on a scale that had no precedent, and the machinery survived independence.

The Committee on Ministers' Powers. The English committee of 1932, whose report is the standard starting point for the topic, classified delegated legislation, identified the Henry VIII clause and recommended safeguards. Indian writers use its vocabulary constantly.

1950. The Constitution did not forbid delegation, and In re The Delhi Laws Act, 1912, AIR 1951 SC 332, settled within a year of the Constitution that it is permissible so long as the essential legislative function is retained.

The planned economy. Industrial licensing, import and export control, essential commodities, price and distribution control, and the nationalisation statutes, each producing rules and control orders in volume.

The Committee on Subordinate Legislation. Constituted in the Lok Sabha in 1953 and in the Rajya Sabha in 1964, with counterparts in the State legislatures, and dealt with in [Legislative Control: Laying and the Scrutiny Committees].

1991 onwards. Liberalisation replaced ownership with regulation, and the regulators legislate: the Telecom Regulatory Authority, the Securities and Exchange Board, the electricity commissions. Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336, is the modern case, and it shows the volume and the stakes.

In one line

Conditional legislation is a complete law whose commencement or application is left to somebody else, and Indian courts invented the label to save delegations that might otherwise have failed.

In the wording a student can write in an exam: conditional legislation is legislation which is complete in itself, the legislature having determined the policy and enacted the rule, but whose coming into force, extension to an area or application to a class is left to the determination of an external authority upon the existence of stated conditions; it is distinguished from delegated legislation, in which the delegate makes the rule itself.

The distinction

Delegated legislation. The legislature lays down the policy and the delegate fills in the details by making rules.

Conditional legislation. The legislature has made the rule; all that is left is to decide when or where it shall operate.

The consequence, on the older view, was that conditional legislation raised no question of excessive delegation at all, because nothing legislative had been handed over. That is why courts reached for the label.

The classic forms

Bringing an Act into force. A section saying the Act shall come into force on such date as the Central Government may by notification appoint.

Extending an Act to an area. The Government may by notification extend this Act to any district.

Applying an Act to a class. The Government may by notification apply this Chapter to any establishment employing more than fifty persons.

Withdrawing an exemption.

The limit: modification is not application

Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 569.

Facts. Section 3(1)(f) of the Patna Administration Act 1915 allowed the Provincial Government to extend to Patna, with such restrictions and modifications as it thought fit, any section of the Bihar and Orissa Municipal Act 1922. A notification applied a taxation section to Patna after modifying it so as to remove the procedural safeguards the section itself contained.

Held. An executive authority can be authorised by statute to modify either existing or future laws, but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, but it is clear that modification cannot include a change of policy. Essential legislative function consists in the determination of the legislative policy and its formulation as a binding rule of conduct. The modifications authorised are limited to local adjustments or changes of a minor character. The notification, having removed the safeguards, effected a change of policy and was ultra vires.

Why it matters here. It puts a usable boundary on the words restrictions and modifications, which appear in every extension provision, and it links conditional legislation to the essential legislative function test.

In one line

A legislature may hand over the work but not the choice, and the choice is called the essential legislative function.

In the wording a student can write in an exam: a legislature may delegate legislative power so long as it does not part with its essential legislative function, which consists in the determination of the legislative policy and its formulation as a binding rule of conduct; a delegation which leaves the policy itself to the delegate is excessive and void.

The case

In re The Delhi Laws Act, 1912, AIR 1951 SC 332.

Facts. The President referred three enactments to the Supreme Court under Article 143. Section 7 of the Delhi Laws Act 1912 allowed the Provincial Government to extend to Delhi, with such restrictions and modifications as it thought fit, any enactment in force in any part of British India. Section 2 of the Ajmer-Merwara (Extension of Laws) Act 1947 was to the same effect for Ajmer-Merwara. Section 2 of the Part C States (Laws) Act 1950 allowed the Central Government to extend to any Part C State any enactment in force in a Part A State, with such restrictions and modifications as it thought fit, and provided that provision might be made in any enactment so extended for the repeal or amendment of any corresponding law in force in the Part C State.

Held. Seven judges delivered seven opinions, and the proposition that survived them is that delegation of legislative power is permissible so long as the legislature does not part with its essential legislative function, which is the laying down of the policy of the law and its enactment as a binding rule of conduct. The first two provisions were upheld. The third was upheld except for the power to provide in an extended enactment for the repeal or amendment of a corresponding law in force in the Part C State, which was held to be a delegation of an essential legislative function and beyond the competence of the delegate.

Why it matters here. It is the foundation of the Indian law of delegated legislation, it settles that delegation is permissible in India without a constitutional provision authorising it, and it fixes the limit.

Why the case is difficult, and how to write about it

Seven judges wrote seven opinions and no two agreed on everything, so a candidate who tries to state the ratio of each will run out of time and marks. The correct approach is to state the question referred, the three enactments, the proposition that has been treated as the ratio ever since, and the one provision that fell.

The three positions, very briefly, were these. One view was that the legislature cannot delegate legislative power at all, because it is itself a delegate of the people. A second was that it may delegate anything short of abdication. The third, which prevailed, is that it may delegate the details but must retain the policy.

In one line

The doctrine that a legislature must keep the policy is real, but it has been applied so indulgently that a delegation almost never fails.

In the wording a student can write in an exam: excessive delegation is the vice of a statutory provision which confers legislative power without laying down any policy, standard or guideline for its exercise, so that the delegate is left to determine the policy itself; such a provision is void, but Indian courts find the policy in the preamble, the long title and the scheme of the Act, and delegations are very rarely struck down.

The one clear failure

Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554.

Facts. The Drug and Magic Remedies (Objectionable Advertisements) Act 1954 prohibited advertisements of drugs claiming to cure the diseases listed in the Act, and section 3(d) allowed the Central Government to add to the list any other disease or condition specified in rules made under the Act. The Act was challenged as an infringement of freedom of speech and as an excessive delegation.

Held. The prohibition on advertisements of the kind the Act aimed at was upheld. But section 3(d), in so far as it allowed the Government to add any other disease or condition to the schedule, was struck down as an excessive delegation: the Act laid down no policy or standard by which the executive was to decide what other diseases should be brought within the prohibition, so the essential legislative function of determining what conduct was to be forbidden had been handed over.

Why it matters here. It is the standard example of a delegation that actually failed, and it is short enough to state accurately.

The indulgent line

Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax, AIR 1974 SC 1660.

Facts. Section 8(2)(b) of the Central Sales Tax Act 1956 fixed the tax on certain inter-State sales at ten per cent or at the rate applicable to the sale inside the appropriate State, whichever was higher. It was argued that by adopting the local rate instead of fixing one, Parliament had laid down no policy and had abdicated its legislative function.

Held. The provision was upheld. There is a clear legislative policy in section 8(2)(b): the rate of central sales tax shall in no event be less than the local rate for the same goods, though it may exceed it. Adopting an external standard fixed by another legislature is not an abdication, and the test of excessive delegation is whether the legislature has laid down the policy and left only its execution to the delegate.

Why it matters here. It shows how little in the way of a policy the Court will require, and it is the necessary counterweight to Hamdard Dawakhana.

In one line

There are eight grounds on which a rule can be attacked, and every one of them appears on MU's papers.

In the wording a student can write in an exam: delegated legislation may be declared void on the grounds that the parent Act is itself unconstitutional; that the delegation is excessive; that the rule is outside or inconsistent with the parent Act; that it violates the Constitution; that it is manifestly arbitrary or unreasonable; that it is mala fide; that it is retrospective without authority; and that a mandatory procedural condition such as previous publication, consultation, publication or laying was not observed.

MU's question

The University sets this on four of the eight papers, in three forms: the circumstances under which delegated legislation can be declared void in India; the grounds on which delegated legislation is declared invalid and unconstitutional; and the grounds of judicial control over it. So this is the most repeated question in Module IV, and the map is what an examiner is looking for first.

The eight grounds

One, the parent Act is unconstitutional. If the enabling Act falls, everything made under it falls with it, unless the rule is severable and referable to another power.

Two, excessive delegation. The Act conferred the power without laying down a policy: Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554.

Three, the rule is ultra vires the parent Act. Beyond the power, inconsistent with a section, or dealing with a subject the Act did not: Kunj Behari Lal Butail v. State of Himachal Pradesh, AIR 2000 SC 1069.

Four, the rule violates the Constitution. A rule is law under Article 13(3)(a): Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515, and Air India v. Nergesh Meerza, AIR 1981 SC 1829.

Five, manifest arbitrariness or unreasonableness. Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336.

Six, mala fides.

Seven, retrospectivity without authority.

Eight, non-compliance with a mandatory procedural condition. Previous publication, consultation, publication in the Gazette, or laying where the Act makes it mandatory: Narendra Kumar v. Union of India, AIR 1960 SC 430, and Harla v. State of Rajasthan, AIR 1951 SC 467.

The Indian checklist, from the case an examiner expects

State of Tamil Nadu v. P. Krishnamurthy, AIR 2006 SC 1622.

Facts. Rule 38A of the Tamil Nadu Minor Mineral Concession Rules 1959 terminated all existing leases and permissions to quarry sand on Government land and vested quarrying in the State, notwithstanding any judgment, decree or order of any court. Lessees challenged the rule.

Held. There is a presumption in favour of the validity of subordinate legislation and the burden is on the person attacking it. A rule may be challenged on the grounds of lack of legislative competence to make it; violation of the fundamental rights guaranteed by the Constitution; violation of any provision of the Constitution; failure to conform to the statute under which it is made, or exceeding the limits of authority conferred by the enabling Act; repugnancy to the laws of the land; and manifest arbitrariness or unreasonableness to a degree at which the court might say that the legislature never intended to give authority to make such rules. Where the inconsistency alleged is not with a specific provision of the enabling Act but with its object and scheme, the court should proceed with caution before declaring invalidity.

In one line

A rule cannot do what its Act did not authorise, however widely the rule-making section is worded.

In the wording a student can write in an exam: a rule is ultra vires the parent Act where it goes beyond the power conferred, where it is inconsistent with a provision of the Act, or where it deals with a subject the Act itself did not deal with; a general power to make rules for carrying out the purposes of an Act does not enlarge the purposes of the Act.

The leading case

Kunj Behari Lal Butail v. State of Himachal Pradesh, AIR 2000 SC 1069.

Facts. The Himachal Pradesh Ceiling on Land Holdings Act 1972 exempted tea estates from the ceiling. Section 26(1) provided that the State Government might, by notification, make rules for carrying out the purposes of the Act. A rule made under that power imposed a restriction on the transfer of land comprised in a tea estate, a restriction the Act itself did not contain.

Held. The rule was ultra vires and was struck down. A general power to make rules for carrying out the purposes of an Act is not a power to make a rule which travels beyond the Act, or which is inconsistent with it, or which deals with a subject the Act itself did not deal with. A delegate cannot widen the purposes of the Act by rule, and a restriction on transfer had nothing to do with regulating the area a person may retain within the ceiling.

Why it matters here. It is the cleanest and most quotable modern statement of the commonest ground in this module.

The three forms of the vice

Beyond the power. The rule does something the section does not authorise: creating an offence under a power to prescribe forms, imposing a fee under a power to regulate procedure, conferring a power of seizure where the Act gives none.

Inconsistent with the Act. The rule contradicts a section. A rule cannot cut down a right the Act confers, or extend a period the Act fixes, unless the Act authorises it.

On a subject outside the Act. Kunj Behari: transfer had nothing to do with ceiling.

The two rule-making formulas

A general power. To make rules for carrying out the purposes of the Act. Wide in appearance, narrow in effect: the purposes are the Act's own and cannot be enlarged.

An enumerated power. A list of matters on which rules may be made, usually with a general clause. Here the question is whether the rule falls within a listed head, and the general clause is read ejusdem generis with the list.

Where an Act has both, the enumerated heads do not exhaust the general power, but they colour it.

In one line

A rule is law, so it dies on exactly the same constitutional grounds a statute does, and on some the statute would survive.

In the wording a student can write in an exam: Article 13(3)(a) defines law to include any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law, so a rule which takes away or abridges a fundamental right is void under Article 13(2); and because subordinate legislation carries no presumption of the legislature's own competence, it may also be attacked on grounds on which a statute could not be.

The proposition and its authority

Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515.

Facts. Customs duty on imported newsprint, abolished in 1966, was reimposed and increased by successive notifications and Finance Acts. Newspaper publishers challenged the levy as a burden on the freedom of the press and challenged the exemption notifications made under the Customs Act as arbitrary.

Held. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned, and in addition it may be questioned on the ground that it does not conform to the statute under which it is made, that it is contrary to some other statute, or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14. The Court directed the Government to reconsider the levy in the light of the special position of the press.

Why it matters here. It is the sentence which explains the whole architecture of this module, and it is the authority for saying that a rule is more vulnerable than an Act.

The three constitutional grounds in practice

Article 14. The commonest. A rule which classifies without an intelligible differentia, or which confers an unguided power, or which is manifestly arbitrary.

Air India v. Nergesh Meerza, AIR 1981 SC 1829, is the standard illustration.

Facts. Service regulations of Air India and Indian Airlines required an air hostess to retire at thirty-five, or on marriage if it took place within four years of joining, or on first pregnancy, with the retirement age extendable at the option of the Managing Director.

Held. The bar on marriage within four years and the extension of the retirement age at the unguided option of the Managing Director were struck down, and termination on first pregnancy was held to be manifestly unreasonable and arbitrary. A regulation which leaves an extension entirely to the discretion of an officer, without any guidelines, confers an unguided and uncanalised power and offends Article 14. The classification of air hostesses as a separate cadre was upheld.

In one line

An English court would strike down a bye-law for being unreasonable; an Indian court took longer to say so, and now says it through Article 14.

In the wording a student can write in an exam: subordinate legislation may be struck down for manifest arbitrariness or unreasonableness, that is where it is so unreasonable that the court can say the legislature never intended to give authority to make such a rule, or where it offends Article 14; the traditional English rule allowed a bye-law of a local body to be struck down for unreasonableness, and Indian courts, after some hesitation, now apply manifest arbitrariness to rules and regulations generally.

The hesitation, and the reason for it

The objection was structural. A rule is legislative, and a court does not review the wisdom of legislation; if unreasonableness were a ground, the court would be doing exactly that. So Indian courts long said that a rule could be struck down for being outside the Act or unconstitutional, but not simply for being unreasonable.

Two things dissolved the objection. Article 14, because after E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, arbitrariness is unconstitutional and not merely unwise. And the practical difficulty of distinguishing a rule which is manifestly arbitrary from one which is beyond the power, since a rule no reasonable authority could have made is unlikely to be within the purposes of the Act.

The modern position

State of Tamil Nadu v. P. Krishnamurthy, AIR 2006 SC 1622, includes among the grounds manifest arbitrariness or unreasonableness to a degree at which the court might well say that the legislature never intended to give authority to make such rules. That formula is the Indian version of the English bye-law rule, and it is deliberately high.

Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336, applies it.

Facts. By the Ninth Amendment to the Telecom Consumers Protection Regulations 2015, made under sections 36 and 11 of the Telecom Regulatory Authority of India Act 1997, every service provider was required to credit one rupee to the calling consumer for each dropped call within its network, up to three a day, whatever the cause of the drop and without any enquiry into it.

Held. The regulation was struck down. Subordinate legislation can be struck down not only for being ultra vires the parent Act but also for manifest arbitrariness under Article 14. Requiring the operator to pay for every dropped call regardless of whether the fault lay with the network, with the consumer's handset or with radio conditions, and without any hearing on causation, was arbitrary and unreasonable, and the payment bore no relation to fault. A regulation cannot impose on a licensee a liability the statute did not authorise.

In one line

A rule made in bad faith is void in theory and almost never struck down in practice, because a legislative act is not examined for motive.

In the wording a student can write in an exam: subordinate legislation may in principle be challenged on the ground of mala fides, but the challenge rarely succeeds, because a rule is legislative in character and the motive of a legislating body is not ordinarily examinable; what succeeds instead is the objection that the rule is outside the parent Act, that it is manifestly arbitrary, or that it was made for a purpose the Act does not authorise.

Why motive is not ordinarily examined

Because of the rule stated in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308, on the question of colourable legislation: the question is in substance one of legislative competence; a legislature cannot overstep the field of its competency directly or indirectly, but if it has the power to make the law, its motive in making it is irrelevant.

A rule-making body is exercising a legislative function, so the same reasoning applies to it by extension. A court asks what the rule does and whether it was within the power, not why it was made.

Where mala fides still has work to do

As colourable exercise. A rule which in form does one thing and in substance another is bad, and the enquiry is into what it does rather than into anybody's motive.

As improper purpose. Where the Act confers a rule-making power for stated purposes and the rule pursues a different one, the rule is outside the Act, which is a question of vires and not of motive.

As arbitrariness. A rule with no rational relation to any object of the Act is arbitrary under Article 14, and the material that would have shown bad faith usually shows arbitrariness too.

Against a subordinate body more readily than against a Government. The English bye-law rule expressly includes bad faith as a ground for striking down a bye-law of a local authority, and Indian courts have been readier to examine the conduct of a municipal or corporate rule-maker than that of a State Government.

Why the ground almost never succeeds

The evidence is unavailable. A petitioner has no access to the file on which a rule was made.

The rule-making body is usually plural. The motive of a committee is a fiction.

The presumption of validity. State of Tamil Nadu v. P. Krishnamurthy, AIR 2006 SC 1622, puts the burden on the challenger.

And the alternatives are easier. Ultra vires and arbitrariness produce the same result without any imputation.

In one line

A delegate can only make law for the future unless the Act that empowered him said otherwise.

In the wording a student can write in an exam: a rule-making power does not carry a power to make rules with retrospective effect unless the parent Act confers it expressly or by necessary implication; the rule rests on the presumption against retrospectivity and on the principle that a delegate cannot have a power the legislature did not give him, and it is stricter for a delegate than for the legislature itself, which may legislate retrospectively subject to the Constitution.

Why a delegate is treated more strictly

Because retrospective legislation upsets settled transactions, and the legislature is answerable for that choice while a delegate is not. A legislature which wants a rule to operate backwards can say so, and the courts require it to say so.

What "retrospective" means here

True retrospectivity. The rule changes the legal effect of something already done: it taxes a completed transaction, invalidates an act that was lawful when done, or takes away a right that had accrued.

Not retrospective. A rule which applies to a continuing state of affairs, or which fixes the future consequences of a past event, is prospective in law even though the past event is relevant to it. A rule fixing pension rates for retirements after its commencement, calculated on past service, is not retrospective.

That distinction disposes of most arguments, because much of what is called retrospectivity is only the future regulation of a continuing position.

The General Clauses Act 1897 on the point

Section 22. Where a Central Act or Regulation is not to come into force immediately on its passing, and a power is conferred to make rules or bye-laws or to issue orders with respect to the application of the Act, the establishment of a court or office, the appointment of a judge or officer, or the person by whom, the time when, the place where, the manner in which or the fees for which anything is to be done under the Act, that power may be exercised at any time after the passing of the Act; but the rules, bye-laws or orders so made shall not take effect till the commencement of the Act.

Section 22 is not a rule about retrospectivity in terms, but it embodies the same principle: a rule may be prepared before the Act operates, and it cannot bite before the Act does.

Section 21. The power to issue a notification, order, rule or bye-law includes the power to add to, amend, vary or rescind it, exercisable in the like manner and subject to the like sanction and conditions. So an amendment may be made, but it takes effect as an amendment does, that is prospectively, unless retrospectivity is authorised.

In one line

A law nobody can know is not a law, and that sentence is the whole of this chapter.

In the wording a student can write in an exam: natural justice requires that a law be promulgated or published before it becomes operative; where a statute requires publication in the Official Gazette, publication is a condition of validity and an unpublished rule is of no effect; and where a statute requires rules to be made after previous publication, section 23 of the General Clauses Act 1897 prescribes what that means.

The foundational case

Harla v. State of Rajasthan, AIR 1951 SC 467.

Facts. A Council of Ministers appointed by the Crown Representative for the government of the Jaipur State passed a resolution in 1923 purporting to enact a law called the Jaipur Opium Act. It was never promulgated, never published in the Gazette and never made known to the public. Many years later a man was convicted under it.

Held. The conviction was set aside. 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, regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.

Why it matters here. It is the most quotable sentence in the whole of delegated legislation, and it establishes publication as a requirement of natural justice and not merely of statute.

The statutory requirement

Where the parent Act requires publication in the Official Gazette, the requirement is ordinarily mandatory, and a rule not so published is of no effect.

Narendra Kumar v. Union of India, AIR 1960 SC 430.

Facts. The Non-ferrous Metal Control Order 1958, made under section 3 of the Essential Commodities Act 1955, required a permit for acquisition, permits to be issued by the Controller in accordance with such principles as the Central Government might specify. Principles were communicated by a departmental letter but were never published in the Official Gazette or laid before both Houses, as the Act required.

Held. The principles by which permits were to be issued were themselves an order within the meaning of section 3, so they had to be published in the Official Gazette and laid before both Houses; not having been, they were of no effect and the permit clause could not be enforced against the petitioners.

Why it matters here. It shows that publication is not a formality, and that guidance which in substance legislates must satisfy the same conditions.

In one line

A delegate who has been given the power to make rules cannot hand that power to somebody else unless the Act allows it.

In the wording a student can write in an exam: sub-delegation of a rule-making power is permissible only where the parent Act authorises it expressly or by necessary implication; the maxim delegatus non potest delegare applies with particular force to legislative power, because the legislature has chosen the body whose judgment it wants, and a rule which purports to authorise a further delegation not contemplated by the Act is ultra vires.

Why the rule is stricter here than for a discretion

Because the legislature has already made one departure from the ordinary constitutional position by delegating legislative power at all. It chose a particular delegate, often for its accountability or its expertise, and the choice is part of the safeguard. A second delegation removes the safeguard, and each further step takes the rule further from anybody the electorate can reach.

The three levels

Delegation. The Act empowers the Government to make rules.

Sub-delegation. A rule made by the Government empowers a board or an officer to make further rules, or to prescribe something the rules leave open.

Sub-sub-delegation. The board's rule empowers an officer to prescribe. The further the chain runs, the less likely a court is to find authority for it.

When sub-delegation is lawful

Where the Act says so. Many Acts provide that rules may empower a stated authority to make regulations.

Where necessary implication compels it. Where the Act contemplates technical standards to be fixed by a specialised body, and no other reading works.

Where what is delegated is not legislative at all. A rule which leaves the form of an application to be prescribed by a department is delegating administration, not law.

Where the parent rule prescribes the standard. If the rule fixes the policy and the sub-delegate only applies it, the objection loses most of its force, because the same essential legislative function test in [The Essential Legislative Function: In re Delhi Laws Act] answers it.