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

The remedies. The writs, the injunction, the declaration, the suit for damages, the statutory appeal. Module III again, and Module IV where those remedies stop.

The scope of the subject: four questions it asks

1. Who has the power? Was the authority that acted the authority the statute named, and was it validly constituted?
2. Was there power at all? Did the parent Act confer the power that was exercised, on the facts that existed?
3. Was the power exercised properly? For the purpose it was given, on relevant considerations, without bias, after a hearing, and reasonably?
4. What can the aggrieved person get? Quashing, a command, a declaration, compensation, or nothing at all?

A student who can turn any problem question into those four questions has the structure of an answer before reading the facts a second time.

Administrative law and constitutional law

They overlap and MU's paper sits in the overlap, because the paper belongs to Group I, Constitutional and Administrative Law. The traditional way of separating them is that constitutional law describes the structure of the State at rest, while administrative law describes it in motion. Constitutional law tells you that there is an executive and what its relation to the legislature is; administrative law tells you what happens when a particular officer of that executive refuses your licence.

In India the separation is thinner than in England, for a reason that runs through this whole book: the power to control the administration is itself constitutional. It comes from Articles 32, 226, 227 and 136, and the grounds on which it is exercised come very largely from Articles 14, 19 and 21. That is why an Indian answer on the grounds of judicial review keeps returning to arbitrariness under Article 14, and an English answer does not.

A worked example

Mrs Fernandes runs a small restaurant in Bandra. The Municipal Commissioner cancels her eating house licence, in one line, citing complaints from neighbours. She was never told what the complaints were and never asked to explain.

Ask the four questions. Who had the power: the Municipal Commissioner, if the municipal Act names him and not the Standing Committee. Was there power: the Act must permit cancellation, and it must permit cancellation for the reason given. Was it exercised properly: she was not told the case against her and had no hearing, so the audi alteram partem rule is broken, and if the complaints came from a rival with a connection to the officer there is a bias point as well. What can she get: a writ of certiorari quashing the cancellation under Article 226, very likely with a direction to decide afresh after hearing her, which is what a court usually gives rather than a licence restored by the court itself.

Notice what administrative law does not ask. It does not ask whether her restaurant is any good, whether the neighbours were right to complain, or whether Bandra needs another eating house. Those are questions for the Commissioner. The court asks only whether he reached his decision lawfully.

What administrative law is NOT

It is not an appeal. This is the single most valuable sentence in the subject. A court exercising judicial review asks whether the decision was made lawfully; a court hearing an appeal asks whether it was made correctly. The distinction is worked in full in [What Judicial Review Is].

It is not the law of the constitution of the government. Whether Parliament may legislate on a subject is constitutional law. Whether the rule the ministry made under that Act is valid is administrative law, although the two run into each other in Module IV.

It is not confined to writs. Students who meet the subject through the five writs come away thinking administrative law is a chapter of remedies. The remedies are Module III of four.

It is not the same as administrative science. How a department ought to be organised, how files should move, how many officers a district needs, are questions of public administration. Administrative law begins where the citizen's legal position is affected.

The distinction that carries marks

Sources of administrative law in India

The Constitution, which supplies both the power of review and most of its grounds. Statutes, which create the authorities and confer the powers. Delegated legislation, the rules and regulations made under those statutes, which is Module IV. Judicial decisions, which are by far the largest source: natural justice, legitimate expectation, proportionality and the doctrine of ultra vires are all judge-made. Administrative instructions and circulars, which are not law but which bind the administration in practice and can found a legitimate expectation.

Quick revision

Administrative law is the public law of the administration: its organisation, its powers, its procedure and the remedies against it. It exists because the modern State must be given wide powers and those powers must be controlled. Four questions: who had the power, was there power, was it exercised properly, and what can the aggrieved person get. It is not an appeal; it tests legality and not correctness. It overlaps constitutional law, and in India the overlap is deep because the power of review is constitutional. Its sources are the Constitution, statutes, delegated legislation, judicial decisions and administrative instructions.

Test yourself

1. Define administrative law in one sentence a examiner will accept. It is the branch of public law which determines the organisation, powers, duties and procedure of administrative authorities and provides remedies to persons aggrieved by their action.

2. Why is administrative law more constitutional in India than in England? Because the power of judicial review is written into Articles 32, 226, 227 and 136, and the grounds of review draw heavily on Articles 14, 19 and 21, whereas in England review is a common law creation and there is no written guarantee behind it.

3. A municipal officer refuses a hawking licence because the applicant belongs to a particular locality. Which of the four questions does the objection fall under? The third: the power was exercised on an irrelevant consideration, and the refusal also offends Article 14.

4. Is the question whether a bus route should be nationalised a question of administrative law? No. Whether to nationalise is a policy decision. Whether the operators whose permits will disappear were heard before the scheme was approved is a question of administrative law, and it is the question in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308, worked in [Institutional Decisions: He Who Decides Must Hear].

Facts. Notifications under section 3(3C) of the Essential Commodities Act 1955 fixed the price of levy sugar zone by zone rather than factory by factory. Producers said the Government had not applied the statutory factors and that the prices were unfair to them.

Held. Price fixation under such a provision is legislative in character, so the rules of natural justice do not apply to it and the court will not sit in judgment on the wisdom of the price. 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 did not act so arbitrarily that no reasonable authority could have reached that figure.

Why it matters here. It is the cleanest illustration that the classification is not academic: change the label from legislative to adjudicatory and a hearing becomes compulsory.

It decides which writ lies. Certiorari and prohibition were historically confined to judicial and quasi-judicial acts, which is why the classification mattered so much in the older cases, and why Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222, turned on it entirely. That confinement has since gone, and the chapter [A.K. Kraipak and the Fading Line Between Quasi-Judicial and Administrative Action] explains how.

It decides the intensity of review. A court will look hard at an adjudication and lightly at a policy choice.

It decides whether reasons are owed. A quasi-judicial order must ordinarily carry reasons; a legislative act need not.

A worked example

The Maharashtra Government, under a statute regulating private coaching classes, does four things in one week. It makes rules prescribing the minimum floor area per student. It orders that a particular class in Dadar be de-registered after an inspection. It refuses a fresh registration to another class in Thane because it thinks the area already has enough. And it issues a registration certificate to a third class which has filed every prescribed document.

The first is rule-making: no hearing to individual classes, challengeable in Module IV terms if it goes beyond the Act. The second is adjudication: notice, disclosure of the inspection report and a hearing are compulsory, and reasons must be recorded. The third is discretion: reviewable for irrelevant considerations, improper purpose and unreasonableness, and probably requiring a hearing because it affects an applicant individually. The fourth is ministerial: no hearing, no discretion, and if the officer sits on it the remedy is a mandamus.

Distinctions a beginner confuses

What this does NOT mean

It does not mean the labels are self-applying. A statute rarely says which of the four it is creating. The court decides by looking at what the power does, not at what it is called.

It does not mean a purely ministerial act is beyond control. It is beyond a hearing, not beyond mandamus.

It does not mean legislative action is unreviewable. Module IV is nothing but the review of legislative action by the administration; what is excluded is a hearing, not review.

Quick revision

Four kinds: rule-making, adjudication, discretion and ministerial action. Rule-making is Module IV; discretion is Module II; adjudication is Module III. The classification decides whether a hearing is owed, which writ lies, how intensely the court reviews and whether reasons are required. Sitaram Sugar is the authority that legislative price fixation attracts no hearing. Kusaldas Advani shows the older law in which everything turned on the label, and Kraipak shows what replaced it.

Test yourself

1. Name the four kinds of administrative action and give an example of each. Rule-making, a ministry framing rules under an Act; adjudication, a rent controller fixing a standard rent; discretion, a licensing authority refusing a permit; ministerial action, an officer issuing a certificate on the prescribed documents.

2. Why does the classification still matter after Kraipak? Because Kraipak removed it as the gateway to natural justice, not as a description of what the administration does. It still decides whether a hearing is owed at all, since legislative action attracts none, and it still governs the intensity of review.

3. A State fixes the retail price of a drug by notification. A manufacturer says it was not heard. Answer him. Price fixation is legislative in character, so no hearing is required: Sitaram Sugar. His remedies are that the notification is outside the Act, that it ignored the factors the Act names, or that it is so arbitrary that no reasonable authority could have fixed that price.

The Indian sequence

Before 1947. Administrative power in British India was very wide and very little controlled, and the Regulating Act courts and later the High Courts exercised such control as there was through the prerogative writs, which the Presidency High Courts alone could issue.

1950. The Constitution changed the position at a stroke. It created justiciable fundamental rights, made every law inconsistent with them void under Article 13, and gave both the Supreme Court and every High Court an express power to issue writs. The control that in England was a common law inheritance became in India a constitutional guarantee.

The first two decades. Planning, industrial licensing, nationalisation of road transport and of insurance, price and distribution control, land reform and the reorganisation of services generated a volume of administrative action the country had never seen, and with it the first generation of administrative law cases.

1976 onwards. Articles 323A and 323B, inserted by the Forty-second Amendment, added a fourth institution to the picture, the administrative tribunal, which is dealt with in [Administrative Tribunals: Articles 323A and 323B].

1991 onwards. Liberalisation reduced the State as an owner and increased it as a regulator, and produced the sectoral regulators dealt with in [Regulatory Agencies and the Modern Regulatory State]. Administrative law did not shrink; it changed shape.

The price of the growth, stated fairly

An answer that only celebrates the welfare State earns half the marks. The same growth created four standing dangers, and the whole of Modules II, III and IV is the answer to them.

Concentration of power. The same department frames the rule, applies it and decides the dispute about it.

Loss of the ordinary court. A citizen whose dispute goes to a tribunal loses the procedural protections a civil court would have given.

Wide discretion. A power to act if the officer is satisfied, with no standard stated, is very close to a power to do as he likes.

Delegated legislation in volume. The rules made under Indian statutes vastly outnumber the sections of the statutes, and almost none of them are debated.

A worked example

Parliament passes an Essential Commodities Act with a section allowing the Central Government, if it is of opinion that it is necessary for maintaining supplies, to make an order regulating the production and distribution of any essential commodity. From that one sentence come control orders on sugar, cement, fertiliser and drugs; licensing authorities in every district; a power to seize stock and confiscate it; and an appellate machinery of departmental officers.

Count what has moved. The rule that binds the trader is written by an officer, not a legislator. The dispute about whether he broke it is decided by an officer, not a judge. The choice whether to prosecute him is an officer's discretion. The only place the citizen can go is a writ court, and the only questions it will ask are the four in [What Administrative Law Is]. That is administrative law, and that is why it grew.

What this does NOT mean

It does not mean the growth was a mistake. The alternative to a welfare State with wide administrative power is not a small State with narrow power; it is the nineteenth century.

It does not mean the courts opposed the growth. They accepted the delegation and the tribunals, and then built the controls. In re The Delhi Laws Act, 1912, AIR 1951 SC 332, upheld the delegations before it while stating the limit, and L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, accepted tribunals while preserving review over them.

It does not mean administrative law is anti-government. Its function is to keep administration lawful, which is a condition of administration being trusted.

Quick revision

The State moved from police State to welfare and regulatory State. Five causes: the change in political philosophy, the legislature's want of time and expertise, the ordinary court's want of speed and specialisation, the need to experiment, and emergency. In India the Constitution converted the control from a common law inheritance into a guarantee, and the tribunals arrived with the Forty-second Amendment. The price of the growth is the concentration of power, the loss of the ordinary court, wide discretion and unexamined delegated legislation, and the rest of this book is the answer to those four.

Test yourself

1. Why could Parliament not simply write all the detail itself? Because it has neither the time to sit continuously nor the technical knowledge, and because a rule that fails must be capable of amendment quickly, which an Act is not.

2. What did the Constitution change about administrative law in India? It made judicial review a constitutional power under Articles 13, 32, 226, 227 and 136, and gave the citizen justiciable rights against the administration, so control no longer depended on the common law.

3. Give one danger of the growth and the doctrine that answers it. Wide discretion with no stated standard; the answer is the group of grounds in Module II, and in particular the arbitrariness doctrine under Article 14 stated in E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

6. Independent regulators. The newest form: a commission or authority created to regulate a sector, combining rule-making, adjudication and enforcement in one body, and deliberately insulated from day-to-day government control. Dealt with in [Regulatory Agencies and the Modern Regulatory State].

The three functions and the agency that performs them

The point of the classification is that the same agency very often performs all three of the functions described in [The Administrative Process: What the Administration Actually Does]. A State Electricity Board frames regulations, decides a consumer's dispute about a bill, and chooses whom to award a contract to. That concentration is precisely what the older constitutional theory said should not happen, and it is why Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, matters here.

Facts. Publishers of school textbooks in Punjab complained that the Education Department, acting only by executive notifications and without any statute, had taken over the printing and sale of textbooks and pushed them out of the business.

Held. The executive power of the State is not confined to executing laws already made. It extends to every matter on which the State legislature can legislate, and the Government may carry on a trade or business by executive action without a special statute, so long as it does not encroach on rights and does not spend money that has not been appropriated. Indian constitutional practice does not adopt a rigid separation of powers; the executive is drawn from the legislature and is responsible to it.

Why it matters here. It is the reason an agency can exist and act before any statute names it, and the reason administrative law cannot be built on the separation of powers alone.

A worked example

A student in Mumbai fails a second-year examination and finds that her answer book was never assessed. Whom does she sue, and where?

If the college is affiliated to the University of Mumbai, the University is a statutory authority created by the Maharashtra Public Universities Act, so the writ petition lies against the University and its Board of Examinations under Article 226. If the college itself is an unaided private institution, it may not be the State under Article 12, but a writ may still lie against it under Article 226 because conducting an examination for a University is a public duty, a distinction drawn in [The State under Article 12, and Who Can Be Sued in a Writ]. If the fault lies with a Government department, the respondent is the State of Maharashtra through the relevant secretary. The choice of respondent is not a formality: a petition against the wrong body is dismissed without the merits being reached.

Distinctions a beginner confuses

What this does NOT mean

It does not mean that every public body is the State. Article 12 has a test, and Zee Telefilms Ltd. v. Union of India, decided on 2 February 2005, shows a body of great public importance failing it.

It does not mean an agency's form decides its liability. The court looks at the substance of the power, not at the certificate of incorporation.

It does not mean the list is closed. New forms appear: the special purpose vehicle, the authority created for a single project, the self-regulatory organisation recognised by a statute.

Quick revision

Six kinds of agency: the department, the statutory authority, the public corporation, local self-government, the tribunal and the independent regulator. The same agency usually rule-makes, adjudicates and exercises discretion, which is the concentration administrative law exists to control. Ram Jawaya Kapur establishes that executive power extends to everything the legislature can legislate on, so an agency can act without a statute naming it. Choosing the right respondent is the first practical step in every writ petition.

Test yourself

1. Name the six kinds of agency. Government departments; statutory authorities; public corporations and government companies; local self-government bodies; tribunals; independent regulatory commissions.

2. Why does the form of the agency matter to an employee dismissed by it? Because an employee of a statutory authority ordinarily holds a status under regulations that have the force of law, so a dismissal in breach of them can be declared void, whereas an employee of an ordinary company is usually left to damages.

3. What does Ram Jawaya Kapur decide about executive power? That it is co-extensive with the legislative power of the same government and does not depend on a prior statute, subject to not encroaching on rights and to appropriation of money.

Facts. Employees of the Oil and Natural Gas Commission, the Industrial Finance Corporation and the Life Insurance Corporation were removed in breach of the regulations framed under the Acts constituting those bodies. The questions were whether a removal contrary to the regulations gave a declaration of continuance in service or only damages, and whether such corporations are authorities within Article 12.

Held. These statutory corporations are authorities within the meaning of Article 12 and are therefore bound by Articles 14 and 16. The regulations framed under their constituting Acts have the force of law and are not internal instructions, so an employee removed in breach of them is entitled to a declaration that the removal is void and that he continues in service.

Why it matters here. It is the case that converts a statutory body's own rulebook into law, which is the practical difference between suing a statutory authority and suing a company.

The third reason is that they are almost always the State under Article 12, so the fundamental rights operate directly against them.

Public corporations and government companies

The two forms. A statutory corporation is created by its own Act. A government company is registered under the Companies Act with the Government holding all or most of the shares. The difference in creation produces a difference in almost everything else.

The advantage of the corporate form. It separates the commercial undertaking from the department: the corporation has its own funds, its own staff, its own board, and its losses do not appear directly on the Government's books. That autonomy is why the form was adopted for railways, insurance, airlines, ports and heavy industry.

The problem it created for administrative law. A body doing what a department used to do, with public money and public purposes, but wearing the clothes of a company. If it is not the State, the fundamental rights do not run against it and no writ lies. The answer the Supreme Court gave is the instrumentality doctrine, which is the subject of the next chapter.

A worked example

Three orders are made on the same morning. The Secretary, Department of Higher Education, Government of Maharashtra, refuses a college permission to start a new course. The Vice-Chancellor of a State University disaffiliates a college. A public sector bank, registered under the Companies Act with the Union holding the majority of the shares, dismisses a clerk contrary to its own service regulations.

The first is challenged by a petition against the State of Maharashtra through the Secretary; if a Rules of Business point arises, the question is whether that Secretary was allocated the function. The second is challenged against the University, a statutory authority, and its own Act and statutes bind it. The third is challenged against the bank; whether it is the State depends on the instrumentality test, and if its regulations are statutory then Sukhdev Singh gives the clerk a declaration rather than damages.

What this does NOT mean

It does not mean a government company is beyond a writ. Even a body which is not the State under Article 12 may be reached under Article 226 if it discharges a public duty.

It does not mean the Rules of Business are secret law. They allocate business; they do not confer power. A power conferred by a statute on a named officer cannot be exercised by another because the Rules of Business assign the file to him.

It does not mean a statutory authority can do whatever its Act does not forbid. It has only the powers the Act gives, expressly or by necessary implication. That is the doctrine of ultra vires in its simplest form.

Quick revision

The department acts in the name of the President or Governor under Articles 77 and 166 and has no separate personality; the Union or the State is the party under Article 300. A statutory authority is a corporate body created by an Act, with powers limited by the Act and regulations that have the force of law, which is Sukhdev Singh. A public corporation may be created by statute or registered as a company, and the corporate form is what made the Article 12 question necessary. Naming the right respondent is the first step of every petition.

Test yourself

1. Why is a department not sued in its own name? Because it has no separate legal personality. Article 300 makes the Union or the State the party, and the department is described in the cause title.

2. What is the practical consequence of regulations having the force of law? An action taken in breach of them is void and can be declared so, rather than being a breach of contract sounding only in damages: Sukhdev Singh.

3. Why was the public corporation form adopted at all? To give a commercial undertaking autonomy from the department: its own funds, board and staff, and freedom from day-to-day departmental control.

Why it matters here. It is the source of every later Article 12 argument, and it did two things at once: it brought a company inside Article 12 and it brought government contracting inside Article 14.

Step three: the tests consolidated, and the veil lifted. Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487.

Facts. A Regional Engineering College registered as a society under a Societies Registration Act rejected candidates after interviews of two or three minutes, in which a third of the total marks was allotted to the viva voce and the questions were about parentage and residence. The society said it was not the State, so no writ lay.

Held. A registered society can be the State. The question is not how the body is legally born but whether it is an instrumentality or agency of Government, and here the composition was dominated by government nominees, the funds came entirely from the Governments, the rules required their approval and the accounts went to them. The corporate veil will be lifted to see the reality. On the merits, allotting a third of the marks to an interview of that kind was arbitrary, and the Court indicated that the oral component should ordinarily be about fifteen per cent.

Why it matters here. It is the case students quote for the tests, and it establishes that the legal form of the body is irrelevant.

Step four: the tests tightened. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, decided on 16 April 2002.

Facts. Employees of a laboratory of the Council of Scientific and Industrial Research, a registered society, challenged their termination by writ. An earlier Constitution Bench had held the Council not to be the State, and the question went to a larger bench.

Held. A seven-judge bench overruled the earlier decision and held the Council to be the State, but restated the test. The Ajay Hasia indicia are not a rigid formula to be mechanically applied. The question in each case is whether the body is financially, functionally and administratively dominated by, or under the control of, the Government, and that control must be particular to the body and pervasive. Where the control is merely regulatory, whether under a statute or otherwise, the body is not the State.

Why it matters here. It is the current test, and the word that decides most modern cases is "pervasive".

Where the line now falls

Zee Telefilms Ltd. v. Union of India, decided on 2 February 2005.

Facts. The Board of Control for Cricket in India terminated a contract for the telecast rights of cricket matches. The broadcaster petitioned under Article 32, arguing that a body which selects the national team and controls the game in India must be the State.

Held. By majority the Board is not the State. It is an autonomous society, not created by statute, not financially or administratively dominated by the Government, and enjoying no State conferred monopoly; discharging functions of public importance and holding a de facto monopoly do not by themselves satisfy the Pradeep Kumar Biswas test. The Court added that although Article 32 was not available, an aggrieved party could seek a remedy under the ordinary law or by a petition under Article 226, because a body which is not the State may still be amenable to that jurisdiction when it discharges a public duty.

Why it matters here. It is the most useful case in the group, because it separates two things students merge: being the State under Article 12, and being amenable to a writ under Article 226.

A worked example

A private unaided engineering college, registered as a trust, receives no government grant, but is affiliated to a State University, must follow the University's syllabus and examination rules, and admits students through a State conducted common entrance test. It rusticates a student without a hearing.

Is it the State? On Pradeep Kumar Biswas, probably not: the control is regulatory, not pervasive, and there is no financial domination. Does a writ lie under Article 226? Very likely yes, because holding examinations and rusticating a student in an affiliated college is the discharge of a public duty connected with the University's statutory functions. Does the student get natural justice? Yes, on either footing, because Article 226 reaches a public duty and because the duty to act fairly does not depend on Article 12.

Distinctions that carry marks

What this does NOT mean

It does not mean government shareholding decides the question. It is one indicium among six, and Pradeep Kumar Biswas requires the whole picture.

It does not mean the judiciary is the State for Article 12. A judicial order of a court is not challengeable as a breach of a fundamental right, which is what Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, decided, and it is worked in [Article 32: The Supreme Court's Writ Jurisdiction].

It does not mean a body outside Article 12 is beyond the law. It is outside Part III, not outside Article 226 and not outside the ordinary law.

Quick revision

Article 12 defines the State inclusively for Part III: Government and Parliament of India, Government and Legislature of each State, and all local or other authorities. Sukhdev Singh brought statutory corporations in and gave their regulations the force of law. R.D. Shetty created the instrumentality test and its six indicia. Ajay Hasia consolidated the tests and lifted the corporate veil of a society. Pradeep Kumar Biswas made the test financial, functional and administrative domination which is pervasive and particular, and excluded merely regulatory control. Zee Telefilms marks the line and points to Article 226 for a body outside it.

Test yourself

1. State the current test of "other authority". Whether the body is financially, functionally and administratively dominated by or under the control of the Government, that control being particular to the body and pervasive rather than merely regulatory: Pradeep Kumar Biswas.

2. A society running a college gets ninety per cent of its funds from the State, its governing body is appointed by the State and its rules need State approval. Is it the State? Yes on Ajay Hasia and Pradeep Kumar Biswas; the legal form of a registered society is irrelevant and the veil will be lifted.

3. If a body is not the State, is a writ impossible? No. Zee Telefilms holds that a body which is not the State may still be amenable to Article 226 in respect of a public duty, although Article 32 is not available.

The appellate tribunal, and where the writ court sits

Most regulatory statutes create a specialist appellate tribunal above the regulator: the Telecom Disputes Settlement and Appellate Tribunal, the Appellate Tribunal for Electricity, the Securities Appellate Tribunal. A person aggrieved must ordinarily go there first, which is the alternative remedy rule of [Alternative Remedies]. The High Court's jurisdiction under Article 226 survives, because L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, holds that it cannot be ousted, but it is exercised sparingly where a specialist forum exists.

A worked example

A State Electricity Regulatory Commission issues a regulation requiring every distribution licensee to buy five per cent of its power from solar generators, and simultaneously rejects a particular licensee's tariff petition without giving it the calculations on which the rejection rests.

The regulation is legislative action. No hearing is owed to individual licensees, but the regulation must be within the Act, must not be manifestly arbitrary, and must have followed whatever consultation the Act requires. The rejection of the tariff petition is adjudication. It requires disclosure of the material relied on and reasons, and the failure to give the calculations is a breach of natural justice on the authority of [Notice, Disclosure and the Materials Relied On]. Both go first to the Appellate Tribunal for Electricity, and only then, and only on a question the Tribunal cannot cure, to the High Court.

What this does NOT mean

It does not mean regulators are beyond Parliament. Their regulations are laid before the House and go to the Committee on Subordinate Legislation like any other rule.

It does not mean independence means unaccountability. A regulator is subject to the same grounds of review as any other authority, and the more it looks like a legislature the more Module IV applies to it.

It does not mean expertise excludes review. It changes the intensity of review, not its availability, which is what Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277, worked in [The Administrative Process: What the Administration Actually Does], establishes for economic judgments.

Quick revision

A regulator legislates, adjudicates and enforces in one body, and is insulated from departmental control. It exists because the State became a referee rather than an owner after 1991. Judicial control reaches it as delegated legislation under Module IV, as adjudication under Module III, and through the ordinary grounds under Module II. Cellular Operators v TRAI is the case: a regulation can be struck down for being ultra vires and also for manifest arbitrariness. A specialist appellate tribunal usually sits between the regulator and the High Court, whose Article 226 jurisdiction survives under L. Chandra Kumar.

Test yourself

1. Why is a regulator created outside the ministry? Because the ministry usually owns or controls an incumbent operator, so regulation from inside it is not credible to private entrants.

2. Name the two grounds on which the TRAI regulation was struck down. That it was beyond the power conferred by sections 11 and 36 of the Act, and that it was manifestly arbitrary under Article 14.

3. Does the existence of an appellate tribunal oust Article 226? No. It makes the writ court decline to act until the statutory remedy is exhausted, but the jurisdiction itself cannot be ousted: L. Chandra Kumar.

What the courts did with them

The Act was upheld, with conditions. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386.

Facts. Section 28 of the Administrative Tribunals Act 1985 excluded the jurisdiction of the High Courts, and as originally enacted that of 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 by transferring the High Court's jurisdiction to another body if that body is an effective and efficacious institutional substitute. The Act was upheld subject to changes: the Chairman of the Tribunal is for practical purposes the equivalent of the Chief Justice of a High Court and must be or have been a High Court judge or have served two years as Vice-Chairman; and appointments must be made in consultation with the Chief Justice of India rather than at the pleasure of the executive.

Why it matters here. It is the moment the Court accepted tribunalisation and set the price of accepting it.

The exclusion was then struck down. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, worked in [Tribunals, Article 323A and L. Chandra Kumar], held 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 excluded, so clause (2)(d) of Article 323A, clause (3)(d) of Article 323B and section 28 are unconstitutional to that extent.

A worked example

A State legislature, relying on Article 323B(2)(a), creates a Sales Tax Appellate Tribunal and provides that no civil court or High Court shall have jurisdiction over any matter within the Tribunal's competence.

The creation of the Tribunal is valid: taxation is a listed subject in clause (2). The ouster of the civil court is valid, because a legislature may direct a class of disputes to a special forum. The ouster of the High Court is void after L. Chandra Kumar, so a person aggrieved by the Tribunal must go to the Tribunal first, but may then move a Division Bench of the High Court under Article 226 or 227. He cannot go straight to the Supreme Court under Article 136 from the Tribunal.

What this does NOT mean

It does not mean tribunals are unconstitutional. They are expressly permitted; what is not permitted is using them to exclude the constitutional courts.

It does not mean every tribunal is created under these articles. Most are not. Income tax appellate tribunals, consumer forums, the National Green Tribunal and the company law tribunals are created under ordinary statutes referable to the legislative lists.

It does not mean Article 323B exhausts the State's power. A State may create a tribunal under an ordinary law on a subject within its lists; Article 323B matters because of what it permits by way of exclusion, and that permission has been read down.

Quick revision

Inserted by the Forty-second Amendment in 1976. Article 323A is for service matters and Parliament alone; Article 323B is for eight listed subjects and either legislature. Both originally permitted the exclusion of all courts except the Supreme Court under Article 136. Sampath Kumar upheld the scheme on condition that the tribunal is an effective substitute and that appointments involve the Chief Justice of India. L. Chandra Kumar struck the exclusion clauses down, because judicial review by the High Courts and the Supreme Court is part of the basic structure.

Test yourself

1. What is the single biggest difference between Articles 323A and 323B? Article 323A is confined to service matters and only Parliament may legislate under it; Article 323B covers eight listed subjects and a State legislature may legislate under it as well.

2. Is clause (2)(d) of Article 323A still good law? No. It was declared unconstitutional in L. Chandra Kumar to the extent that it excludes the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32.

3. Can an appeal lie from a tribunal directly to the Supreme Court under Article 136 today? No. L. Chandra Kumar directed that a litigant must first move a Division Bench of the High Court within whose jurisdiction the tribunal falls.

Section 28, the exclusion of the jurisdiction of courts. As enacted, no court except the Supreme Court, and no other tribunal, was to exercise any jurisdiction in relation to the matters the Tribunal deals with.

Section 29, transfer of pending cases. Every suit or proceeding pending before a court immediately before the appointed day, which would have been within the Tribunal's jurisdiction, stands transferred to the Tribunal.

Section 28 and what happened to it

Section 28 is the provision that matters for MU's Module IV. Read literally it removed the High Courts entirely from service litigation. It survived S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386, on the footing that the Tribunal is an effective substitute for the High Court, and it did not survive L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, which held that the High Courts' power under Articles 226 and 227 is part of the basic structure and cannot be excluded. Section 28 is therefore unconstitutional to the extent that it purports to exclude the High Court, and the position now is that the Tribunal is the court of first instance and the High Court sits over it.

Natural justice inside the Act

Section 22 is the link between this Act and Module III. The Tribunal is freed from the Code of Civil Procedure but expressly bound by the principles of natural justice, which is a statutory recognition of everything in [Procedural Fairness and the Principles of Natural Justice]. Freedom from the Code is not freedom from fairness.

A worked example

An Assistant Engineer in a Union department is superseded in a promotion made in March. He files a departmental appeal in April; it is not decided. In November he wants to go to court.

He cannot go to the High Court first: section 14 takes the jurisdiction and section 19 sends him to the Tribunal, subject to section 20 which requires him to have exhausted departmental remedies. His appeal has been pending more than six months, so the proviso to section 20 lets him in. Limitation under section 21 runs from the date of the final order or from the expiry of the six months. He files before the Tribunal, which is not bound by the Code but must follow natural justice under section 22. If he loses, section 28 does not stop him: after L. Chandra Kumar he may move a Division Bench of the High Court under Articles 226 and 227, and only after that the Supreme Court.

What this does NOT mean

It does not mean the Tribunal is a department. It is a judicial body, its Chairman is or has been a High Court judge, and section 17 gives it contempt powers.

It does not mean the Act still excludes the High Court. Section 28 is read down after L. Chandra Kumar, and reciting it as good law is the commonest error in an answer on this topic.

It does not mean a litigant may choose between the Tribunal and the High Court. He must go to the Tribunal first; the High Court's jurisdiction is supervisory and not an alternative first instance.

Quick revision

Sections 14 and 15 confer the jurisdiction; section 17 gives contempt power; section 19 is the application; section 20 requires departmental remedies to be exhausted, with a six-month proviso; section 21 gives a one-year limitation with power to condone; section 22 frees the Tribunal from the Code but binds it to natural justice; section 27 makes the order final; section 28 excluded the courts and is unconstitutional so far as the High Courts are concerned; section 29 transferred pending cases. Sampath Kumar upheld the Act with conditions; L. Chandra Kumar removed the ouster.

Test yourself

1. What does section 22 do, and why does it matter for Module III? It frees the Tribunal from the Code of Civil Procedure but binds it to the principles of natural justice, so the whole of the fairness law applies to it by statute.

2. Can an applicant go straight to the Tribunal without a departmental appeal? Ordinarily no, because section 20 requires the departmental remedies to be exhausted, unless the appeal or representation has been pending for six months.

3. State the present status of section 28. It is unconstitutional to the extent that it excludes the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32: L. Chandra Kumar.

Why it matters here. It is the old law in its purest form. A man lost his home, the order was reviewed for nothing, and the reason was a classification.

What was wrong with the classification

It was circular. The court decided the class by asking whether natural justice was owed, and decided whether natural justice was owed by looking at the class.

It had no principle. Nothing in the nature of the two functions explained why an administrative order that ruins a man should be made without hearing him, while a quasi-judicial order of no consequence must be.

It rewarded drafting. A legislature that wished to avoid a hearing had only to write the power in subjective terms.

It ignored consequences. As the Court itself later said, an unjust decision in an administrative enquiry may have a more far-reaching effect than a decision in a quasi-judicial enquiry.

A worked example, then and now

An officer cancels a firm's registration under a control order without hearing it. Under the old law, the first question is whether the statute contains anything showing a duty to act judicially; if the section says the officer may cancel "if he is satisfied", the answer is no, the act is administrative, and the firm has no remedy on the ground of no hearing. Under the law after Kraipak, the question is whether the cancellation visits the firm with civil consequences; it plainly does, so fairness is owed, and the absence of a hearing is fatal unless the statute excludes it or an emergency justifies a post-decisional hearing.

Distinctions that still carry marks

What this does NOT mean

It does not mean the classification is dead. The legislative class survives and is decisive: no hearing is owed to a rule, which is why Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277, decided as it did.

It does not mean the words quasi-judicial have disappeared. They are still used, for instance in the rule about recording reasons stated in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.

It does not mean every administrative act now attracts a hearing. What attracts a hearing is civil consequences, and [Exclusion of Natural Justice] sets out where even that is displaced.

Quick revision

Three classes: legislative, quasi-judicial and purely administrative. The old test for a quasi-judicial act was a lis, presentation of the case and a decision on law applied to facts, plus a superadded duty to act judicially. Natural justice, certiorari and prohibition were confined to the quasi-judicial class. Kusaldas Advani is the doctrine in operation, and it shows the cost. The classification was circular, unprincipled, defeated by drafting and blind to consequences, which is why Kraipak abandoned it as a gateway while leaving the legislative class intact.

Test yourself

1. State the three elements of the old definition of a quasi-judicial act. A lis between parties, presentation of their cases, and a decision on the merits by applying law to facts, with a superadded duty to act judicially.

2. Why did Kusaldas Advani fail? Because on the construction of section 3 the public purpose was part of the Government's subjective opinion, so the requisition was administrative and certiorari, being confined to judicial and quasi-judicial acts, did not lie.

3. Which part of the old classification survives untouched? The legislative class. Legislative action attracts no hearing to individuals, and that is still the law.

Why it matters here. Four things, and an answer should give all four. It abolished the classification as the gateway to natural justice. It replaced it with a question of fact: was this rule necessary here. It held that a selection, which nobody would call a lis between parties, attracts the rule against bias. And it decided that a defect at the first stage travels down the whole chain of decision.

What Kraipak did NOT decide

It did not abolish the classification. Legislative action still attracts no hearing.

It did not say the same procedure is owed everywhere. It says the content of fairness varies with the facts, which is why a selection board owes impartiality but not cross-examination, and a disciplinary enquiry owes both.

It did not invent the idea. State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269, had already held two years earlier that an administrative order which visits a person with civil consequences must be made consistently with natural justice.

Facts. A State servant's date of birth was re-fixed after an enquiry whose report was never disclosed to her and whose evidence she was never allowed to meet, and she was compulsorily retired on the new date.

Held. The order was quashed. A duty to act judicially arises from the nature of the power and its consequences and not from the label attached to it, and an administrative order involving civil consequences must be made consistently with the rules of natural justice.

Why it matters here. It supplies the phrase courts have used ever since, and it shows Kraipak completing a movement rather than starting one.

The answer to MU's question, in four lines

They are different in nature and the difference still matters for some purposes: a quasi-judicial act decides a dispute on evidence, an administrative act does not. They are no longer different for the purpose that used to matter most: fairness is owed to both wherever civil consequences follow. The line between them is in any case very hard to draw, which is one of the Court's own reasons. And the modern question is not which side of the line the act falls on but what fairness required on these facts.

A worked example

A departmental promotion committee sits to prepare a select list. One member is the officer whose confidential reports on two of the candidates are before the committee, and he has recorded adverse remarks on one of them. He does not withdraw.

On the old classification this is administrative: no lis, no evidence, no parties, nothing but an assessment of comparative merit, so no natural justice and no certiorari. On Kraipak the answer is the opposite. A selection is an administrative act, fairness is nonetheless owed because the officers have a civil interest in consideration for promotion, the rule against bias applies to a selection body, and a member who is in substance a judge in a matter he has himself reported upon disqualifies the committee.

Quick revision

Kraipak, AIR 1970 SC 150, decided 29 April 1969. A member of a selection board was himself a candidate and sat when his rivals were considered. Held: natural justice applies to administrative action too; the line between administrative and quasi-judicial enquiries is hard to draw; an unjust administrative decision may have the wider effect; the test is whether observance of the rule was necessary for a just decision on those facts; the taint at the first stage travelled to the final notification. Binapani Dei two years earlier had already fixed on civil consequences rather than on the label.

Test yourself

1. What exactly did Kraipak abolish? The classification of the act as the gateway to natural justice, that is the requirement of a superadded duty to act judicially before fairness could be demanded.

2. Why did the participation of the disqualified member matter, when he withdrew for his own name? Because he took part when his rivals were considered and when the order of preference was fixed, and his rivals' fortunes were the mirror image of his own.

3. Did the fresh scrutiny by the Union Public Service Commission cure the defect? No. The Commission worked on the list the tainted Board had prepared, so the defect travelled down the chain.

What is actually in droit administratif

It is judge-made. There is no French code of administrative law. The rules come from the decisions of the Conseil d'Etat, which is why the system is often described as a common law system inside a civil law country.

Its central action is the recours pour exces de pouvoir, the action for excess of power, by which any interested person may ask for the annulment of an administrative decision. It is cheap, needs no lawyer, and is available on wide grounds.

Its liability rules are more generous than the common law's. The State's liability for damage caused by the administration developed in the Conseil d'Etat without the doctrine of sovereign immunity and without the need to identify a tort. Liability without fault, for risk created by the administration and for breach of equality before public burdens, is normal French law and is unknown in that form to a common law court.

Its remedies are shaped for administration. Annulment operates against everybody, not merely between the parties.

A worked example, the same facts in two systems

A prefect closes a factory on the ground that it is a danger to public health, without hearing the owner, and the closure destroys the business.

In France. The owner brings a recours pour exces de pouvoir before the administrative tribunal and, on appeal, the Conseil d'Etat. The grounds available include lack of competence, defect of form, detournement de pouvoir, which is the use of a power for a purpose other than the one it was given for, and violation of the law. If the order is annulled it is annulled for all purposes. A separate action for damages lies before the same courts, and it does not depend on proving a tort in the English sense.

In India. The owner petitions the High Court under Article 226 for certiorari and, if he wants his losses, sues separately in a civil court, where he must prove a tort and meet the defence of sovereign function so far as it survives. The two proceedings are before different courts, on different principles, with different rules of evidence.

What droit administratif is NOT

It is not administrative law in general. Every country has administrative law. Droit administratif is the French version of it, with the particular institutional feature of separate courts.

It is not a system of privilege for officials. This was Dicey's charge and it is now accepted to have been wrong. The Conseil d'Etat has been at least as demanding of the administration as English courts have.

It is not a system without a court. The Conseil d'Etat is a court in substance: it hears argument, gives reasoned decisions and follows its own precedents.

It is not confined to France. Variants exist in Belgium, Italy, Greece, Egypt, Turkey and much of francophone Africa.

Quick revision

Droit administratif is French administrative law: a distinct body of rules for the administration, applied by a separate hierarchy of administrative courts headed by the Conseil d'Etat, resting on the separation of administrative and judicial authority effected by the law of 1790. It moved from justice retenue to justice deleguee in 1872. It is judge-made, its central action is the recours pour exces de pouvoir, and its liability rules are more generous than the common law's. Dicey's three characteristics are the standard way to state it.

Test yourself

1. What did the law of 16 and 24 August 1790 do, and why does it matter? It forbade the ordinary courts to interfere with administrative operations, which created the need for a judge inside the administration and so produced the Conseil d'Etat.

2. What is the difference between justice retenue and justice deleguee? Under justice retenue the Conseil d'Etat only advised and the minister decided; under justice deleguee, from 1872, it decides in its own name.

3. Name the French action for the annulment of an administrative decision and two of its grounds. The recours pour exces de pouvoir; grounds include incompetence, defect of form, detournement de pouvoir and violation of the law.

The action and the grounds

The central action is the recours pour exces de pouvoir, an action to annul an administrative decision for excess of power. It is open to anyone with an interest, is inexpensive, requires no advocate, and its four classical grounds map closely onto the grounds a common lawyer knows.

A second action, the recours de pleine juridiction, goes further: the court may not merely annul but substitute its own decision and award damages. That is the great practical difference from a writ court, which quashes and remits.

Liability without the doctrine of immunity

The Conseil d'Etat built the liability of the State from the ground up. The Blanco decision of the Tribunal des Conflits in 1873, over a child injured by a wagon of a State tobacco factory, held that the liability of the State for damage caused by the services it employs is neither general nor absolute and is governed by special rules, and that the administrative courts alone are competent. From that beginning grew a law of liability that includes fault of the service and liability without fault for abnormal risk and for unequal public burdens.

A worked example

A ministry issues a decree that fixes the maximum price of a medicine, and a manufacturer says the minister had no power to fix prices at all, that the advisory committee was never consulted as the enabling law requires, and that the real purpose was to favour a State-owned producer.

In France the manufacturer brings a recours pour exces de pouvoir before the Conseil d'Etat itself, because the instrument is a decree. His three complaints are incompetence, vice de forme and detournement de pouvoir. If any succeeds the decree is annulled erga omnes, that is against everybody. If he also wants his losses he brings a recours de pleine juridiction before the same jurisdiction.

In India the same three complaints are substantive ultra vires, breach of a mandatory procedural requirement, and improper purpose, and they are made in a writ petition under Article 226. If he wants his losses he must sue separately in a civil court.

What this does NOT mean

It does not mean the Conseil d'Etat is soft on the administration. Its annulment rate and the breadth of its liability law are the standard answer to Dicey.

It does not mean France has no ordinary courts. It has a full civil and criminal hierarchy under the Cour de cassation. The point is that the administration is not before them.

It does not mean the boundary is always clear. It is not, which is why the Tribunal des Conflits exists.

Quick revision

Created 1799, judicial power in its own name from 1872. Two faces: advisory sections that vet every decree and bill, and the section du contentieux which decides cases, with an internal separation between them. Three tiers: tribunaux administratifs, cours administratives d'appel, Conseil d'Etat, with the Tribunal des Conflits policing the boundary. Members are administrators by training. The recours pour exces de pouvoir annuls for incompetence, vice de forme, detournement de pouvoir and violation de la loi; the recours de pleine juridiction substitutes and compensates. Blanco in 1873 founded State liability on special rules applied by the administrative courts.

Test yourself

1. Name the four classical grounds of the recours pour exces de pouvoir. Incompetence, vice de forme, detournement de pouvoir and violation de la loi.

2. What is the Tribunal des Conflits for, and why has India no equivalent? It decides whether a dispute belongs to the ordinary or the administrative courts. India has no equivalent because it has no separate administrative jurisdiction whose boundary needs policing.

3. What is the practical difference between a recours de pleine juridiction and a writ of certiorari? The French court may substitute its own decision and award damages; a writ court quashes and ordinarily remits the matter for a fresh decision.

He himself changed his mind. In an article of 1915 he accepted that droit administratif had come to protect the citizen effectively and that England had developed something like administrative law of its own.

What survives of Dicey, and it is a great deal

The first limb survives everywhere. The whole of Module II of this syllabus, the grounds of review, is the working out of the proposition that discretion must not be arbitrary. In India it survives in constitutional form, because 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 for that reason unequal and violates Article 14.

The second limb survives in modified form. Officials in India are subject to the ordinary law and to the ordinary courts, and the growth of tribunals has not changed that in principle, because L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, keeps the High Courts above every tribunal.

The third limb does not apply to India at all. India's rights are in a written Constitution rather than in judicial decisions, and India's rule of law is stronger for it, because a right founded on the Constitution cannot be taken away by an ordinary Act.

The rule of law in the Indian Constitution

The phrase appears nowhere in the text, and the content is spread across it. Article 14, equality before the law and the equal protection of the laws. Article 13, which voids a law inconsistent with the fundamental rights. Article 21, which requires a procedure established by law and, after Maneka Gandhi v. Union of India, AIR 1978 SC 597, a procedure that is right, just and fair. Article 20, which forbids retrospective criminal law. Articles 32 and 226, without which the rest would be declaratory. The Supreme Court has held the rule of law to be a basic feature of the Constitution.

A worked example

A State passes an Act providing that no officer of a particular department shall be liable in any civil or criminal proceeding for anything done under the Act, and that any question about the application of the Act shall be decided by the Secretary of the department whose decision shall be final.

On Dicey's second limb both provisions offend the rule of law: the first creates a special immunity, the second creates a special judge. On the Indian Constitution the analysis is sharper and produces a firmer answer. A blanket immunity clause is read down to protect only acts done in good faith. A finality clause does not exclude the High Court under Article 226, on the authority of [The Finality Clause], and a provision that truly ousted the High Court would be unconstitutional under L. Chandra Kumar.

What this does NOT mean

It does not mean discretion is unlawful. Dicey's first limb, taken literally, would make the modern State impossible. What the law requires is not the absence of discretion but its control.

It does not mean India follows Dicey. It follows a written constitution, which is the opposite of his third limb.

It does not mean droit administratif and the common law are converging into one thing. They are converging, but the institutional difference remains and is the point of MU's question.

Quick revision

Dicey's three limbs: no arbitrary power; equality before the ordinary law in the ordinary courts; a constitution that is the result of ordinary judicial decisions. He treated droit administratif as official privilege and as the negation of the second limb. He was wrong: the Conseil d'Etat is a real court, French liability law is stricter than he supposed, English law already had discretions and tribunals, and he modified his view in 1915. The first limb is the foundation of Module II and appears in India as the arbitrariness doctrine in Royappa; the second survives in modified form; the third does not apply to a country with a written constitution.

Test yourself

1. State Dicey's second limb and explain why droit administratif offended it. That every man is subject to the ordinary law and to the ordinary courts; droit administratif offended it because officials were judged by special rules in special courts.

2. Give two reasons why Dicey's criticism is now rejected. The Conseil d'Etat is an independent and demanding court, and French liability law developed without sovereign immunity and so was in important respects stricter than the English law of his time.

3. Where does Dicey's first limb appear in Indian constitutional law? In the arbitrariness doctrine under Article 14 stated in E.P. Royappa, which makes an arbitrary act unequal and therefore unconstitutional.

Two, the source of the law. The common law started from the position that the State is subject to the same law as everybody else, and had to build public law principles inside a private law framework, which is why English administrative law took so long and why sovereign immunity survived so long. The French started from a special law and built it deliberately.

Three, the remedy. A writ court quashes and remits; it does not decide what the licence fee should be. The French court in plein contentieux does. That is the strongest argument in favour of the French system for a citizen who wants an answer rather than a fresh hearing.

Four, prevention. The Conseil d'Etat sees an instrument before it is made. No common law court does, and the nearest Indian equivalent is a scrutiny committee of the legislature, which is dealt with in [Legislative Control: Laying and the Scrutiny Committees].

The evaluation MU's most recent paper asks for

In favour of the French model. It is cheap and accessible. It gives a complete remedy including damages in one proceeding. Its judges understand administration. Its liability law is more generous to the citizen. Its advisory control prevents illegality instead of curing it.

In favour of the common law model. Its judges are visibly independent of the administration they judge, which matters for public confidence. It applies one law to the State and the citizen alike, which is a moral position and not merely a technical one. It has no boundary problem, so a litigant never loses two years discovering which system he should have gone to. And in India it is entrenched: judicial review by the constitutional courts cannot be taken away, which no French rule guarantees.

Where India actually stands. India is a common law system with a large French-looking overlay. It has tribunals which are separate adjudicators for whole classes of dispute, but they sit under the High Courts rather than beside them. It has borrowed proportionality, which is a continental technique. It has developed public law compensation in Rudul Sah v. State of Bihar, AIR 1983 SC 1086, which does in a writ petition what a French court does in plein contentieux. And it has kept the single hierarchy of courts, which is the one thing Dicey was right to value.

A worked example

A customs officer confiscates goods and imposes a penalty, wrongly construing the licence under which they were imported.

In France. One action, before the administrative tribunal, to annul for violation de la loi, and if the trader wants his losses he adds a claim in the same jurisdiction. He needs no advocate and pays very little.

In India. A statutory appeal first, because of the alternative remedy rule. If that fails, a writ petition under Article 226, where the ground is a jurisdictional error of the kind found in Union of India v. Tarachand Gupta and Bros., AIR 1971 SC 1558. Quashing is what he gets; for damages he must file a civil suit and prove a tort.

What this does NOT mean

It does not mean one system is better. MU asks for an evaluation, and an evaluation that ends in an unqualified verdict is usually a weak one.

It does not mean England has no administrative courts. It has an Administrative Court within the High Court and a large tribunal system, but those are parts of the ordinary judicature.

It does not mean India could adopt the French system by legislation. After L. Chandra Kumar the High Courts' supervisory jurisdiction is part of the basic structure, so a wholly separate administrative jurisdiction closed to them is not open to Parliament.

Quick revision

The common law controls the administration through ordinary courts, ordinary law, career judges, the writs, quashing and a separate suit for damages. France controls it through separate courts, special judge-made law, administrator-judges, the recours pour exces de pouvoir, annulment against everybody, and damages in the same proceeding, with advisory vetting before instruments are made. The French system is cheaper, more complete and preventive; the common law system is visibly independent, applies one law to all, has no boundary problem, and in India is constitutionally entrenched.

Test yourself

1. Give the single institutional difference from which the others follow. The separation of administrative from judicial authority in France, effected in 1790 and policed by the Tribunal des Conflits.

2. Why can a French court give a complete remedy where an Indian writ court often cannot? Because in plein contentieux it may substitute its own decision and award damages, whereas a writ court quashes and remits, leaving damages to a separate civil suit.

3. Could India adopt a separate administrative jurisdiction closed to the High Courts? No. The supervisory jurisdiction of the High Courts under Articles 226 and 227 is part of the basic structure: L. Chandra Kumar.

Why it matters here. It is the clearest Indian statement that review is of the process, and it is the case an examiner expects when the word restraint appears.

The distinction in a table

What judicial review covers

The legislature. Whether an Act is within the legislative competence of the body that passed it, and whether it violates the Constitution.

The executive and the administration. Whether an order was within power, made fairly, on relevant grounds and reasonably.

Delegated legislation. Whether a rule is within its parent Act and within the Constitution, which is Module IV.

Judicial and quasi-judicial decisions of subordinate bodies. Through certiorari and Article 227.

Where its authority comes from in India

Not from a section that says courts may review. From the structure of the Constitution and from four articles: Article 13, which makes an inconsistent law void; Article 32, which gives the Supreme Court the power to issue writs and makes the right to move it a fundamental right; Article 226, which gives every High Court a wider writ power; and Article 227, which gives superintendence over subordinate courts and tribunals. Article 136 adds a discretionary appellate jurisdiction which is not review in the strict sense but which does much of the same work.

A worked example

A State Public Service Commission selects candidates for the post of Assistant Professor. A rejected candidate complains that the selected candidate's research publications were weaker than his own, that one member of the interview board had supervised the selected candidate's doctorate, and that the marks allotted to the interview were changed after the interviews were over.

The first complaint is a merits complaint and the court will not entertain it: comparative academic worth is for the expert body, which is what University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491, decided. The second is a legality complaint: it is bias, and it goes to the process. The third is also a legality complaint: changing the criteria after the exercise has begun is arbitrary and violates Article 14. A student who cannot separate the first from the other two will write an appeal instead of a writ petition.

What judicial review is NOT

It is not a second opinion. If two views are possible and the authority took one of them, the court leaves it.

It is not available on the ground that the decision was unwise. Unreasonableness in the Wednesbury sense is a very high bar, worked in [Wednesbury Unreasonableness, which MU Prints as an Oppressing Decision].

It is not the same as judicial activism. Review is a jurisdiction; activism is a description of how energetically it is used.

It is not a right in the sense that the court must give relief. The writ is discretionary, and the whole of Module IV is about when the discretion is refused.

Quick revision

Judicial review is the examination by a superior court of the legality of public action. It is about the process and not the merits: review asks whether the decision was lawfully made, appeal asks whether it was correct. Tata Cellular is the Indian statement of restraint. It covers legislation, executive and administrative action, delegated legislation and the decisions of subordinate tribunals. Its authority in India comes from Articles 13, 32, 226 and 227, with Article 136 alongside. It is discretionary, and it is not activism, a second opinion, or a remedy for unwise decisions.

Test yourself

1. Give the distinction between review and appeal in one sentence each. Review asks whether the decision was lawfully made and leaves the merits alone; appeal asks whether the decision was correct and may substitute another.

2. Which four articles carry judicial review in India? Article 13, Article 32, Article 226 and Article 227, with Article 136 alongside them.

3. A tender is awarded to a bidder whose price was higher. Is that reviewable? Not on the ground that the price was higher, which is a merits question in the realm of contract. It is reviewable if the criteria were departed from, if there was bias, or if the process was arbitrary: Tata Cellular and R.D. Shetty.

The Government of India Act 1935. It introduced a federal distribution of legislative power in Lists, and with it the first real judicial review of legislation in India, because a court had to decide whether a law was within the list of the legislature that made it. It contained no bill of rights, so review for violation of rights did not exist.

Stage four: the Constitution

1950 changed everything at once.

Article 13 declares that all laws in force inconsistent with the fundamental rights are void to the extent of the inconsistency, and that the State shall not make any law which takes away or abridges them.

Article 32 gives the Supreme Court power to issue directions, orders or writs, including the five named writs, for the enforcement of fundamental rights, and makes the right to move the Court a fundamental right in itself.

Article 226 gives every High Court the power to issue the same writs, not only for fundamental rights but for any other purpose, which makes it wider than Article 32.

Article 227 gives every High Court superintendence over all courts and tribunals within its territory.

Article 136 gives the Supreme Court a discretionary power to grant special leave to appeal from any court or tribunal.

The result is that judicial review in India rests on the text and not on the common law, and that every citizen in every district has a writ court.

Stage five: what the Court did with it

It made the remedy real. Romesh Thappar v. State of Madras, AIR 1950 SC 124, decided in the Court's first year, held that Article 32 confers a fundamental right to move the Supreme Court itself and that the Court is constituted the protector and guarantor of fundamental rights, so it cannot refuse to entertain an application merely because the applicant might have gone to a High Court.

It protected the remedy from itself. Prem Chand Garg v. Excise Commissioner, U.P., Allahabad, AIR 1963 SC 996, struck down a rule of the Supreme Court's own making which required security for costs in an Article 32 petition, because the Court's rule-making power cannot be used to place an impediment in the way of a guaranteed right.

It then had to defend the power itself, through the basic structure litigation, which is the next chapter but one.

A worked example of why the history matters

A student is asked whether the Indian courts' power of judicial review is inherited from England. The right answer separates two things. The remedies are inherited: certiorari, mandamus, prohibition, quo warranto and habeas corpus are English writs, and T.C. Basappa v. T. Nagappa, AIR 1954 SC 440, holds that Indian courts may issue orders in the nature of those writs so long as the broad and fundamental principles of English law regulating them are adhered to. The power is not inherited: England has no power to declare an Act void, and India's power comes from Articles 13, 32 and 226. An answer that says India simply follows England is wrong on the more important half.

What this does NOT mean

It does not mean the writs in India are the English writs. They are orders in the nature of those writs, freed of English technicalities of form.

It does not mean judicial review of legislation began in 1950. It began under the Government of India Act 1935 on the ground of legislative competence.

It does not mean Dr Bonham's Case is authority for anything today. It is the origin of an idea, not a source of law.

Quick revision

Dr Bonham's Case 1610, the claim that common law may control an Act, which failed in England. Marbury v Madison 1803, the working power under a written constitution. India: the Presidency Supreme Courts under the Regulating Act 1773 and then the Presidency High Courts under the Act of 1861 had the writ jurisdiction, but only there. The Government of India Act 1935 brought review for legislative competence. The Constitution of 1950 brought Articles 13, 32, 226, 227 and 136, so every High Court has the writs and the Supreme Court is the guarantor. Romesh Thappar and Prem Chand Garg made the remedy real and protected it.

Test yourself

1. Why did Coke's claim not survive in England? Because the seventeenth century settled the supremacy of Parliament, so an English court cannot declare an Act void; what survived was control of the executive through the prerogative writs.

2. What was the position of a litigant outside the Presidency towns before 1950? He had no writ remedy at all, because only the three Presidency High Courts had the prerogative writ jurisdiction.

3. What did the Government of India Act 1935 contribute? Judicial review of legislation on the ground of legislative competence, because power was distributed in Lists. It had no bill of rights, so review for violation of rights had to wait for 1950.

Due process was deliberately dropped. The Assembly considered and rejected the American phrase "due process of law" in Article 21, substituting "procedure established by law", precisely in order to keep the courts from reviewing the substance of legislation on liberty. What happened to that decision is the subject of [Due Process in India].

The other doors

Article 32. The Supreme Court's writ jurisdiction for fundamental rights, itself a fundamental right.

Article 226. Every High Court's writ jurisdiction, for fundamental rights and for any other purpose.

Article 227. Superintendence over all courts and tribunals within the High Court's territory.

Article 136. Special leave to appeal, discretionary and available from any court or tribunal except a court martial.

Articles 245 and 246. The distribution of legislative power, which makes competence reviewable and which is the constitutional foundation of Module IV, because a delegate can have no more power than the legislature had to give.

Article 245(1) also contains the words subject to the provisions of this Constitution, which is the textual hook for review of an Act on any constitutional ground and not only on the ground of a fundamental right.

A worked example

A State legislature passes an Act empowering a district officer to detain a person for up to six months if satisfied that his activities are prejudicial to public order, with no provision for a hearing, no communication of grounds and no advisory board. A rule under the Act says that the officer's satisfaction shall not be questioned in any court.

Article 246 and List II are the first question: public order is a State subject, so competence is probably present. Article 13(2) with Articles 21 and 22 is the second: the absence of grounds and of an advisory board offends Article 22, and the procedure is not right, just and fair under Article 21 as construed in Maneka Gandhi v. Union of India, AIR 1978 SC 597. The rule is "law" under Article 13(3)(a), so it too is void for the same reasons, and in any event a rule cannot oust the High Court under Article 226. The petition lies under Article 32 or Article 226.

What this does NOT mean

It does not mean Article 13 covers a constitutional amendment. Clause (4), inserted by the Twenty-fourth Amendment, takes amendments out of Article 13, which is why the limit on amendments had to be found elsewhere, in the basic structure doctrine.

It does not mean an administrative order is "law" under Article 13. An executive instruction which does not have the force of law is not, although it may still be reviewable and may found a legitimate expectation.

It does not mean judicial review is confined to Part III. Article 226 is expressly available for any other purpose, and competence review under Article 246 has nothing to do with fundamental rights.

Quick revision

Article 13(1) voids pre-Constitution laws inconsistent with Part III; 13(2) forbids the State to make such a law; 13(3)(a) defines law to include ordinances, orders, bye-laws, rules, regulations, notifications, customs and usages having the force of law; 13(4) excludes constitutional amendments. Article 32 is the Supreme Court's writ power and is itself a fundamental right; Article 226 is wider and belongs to every High Court; Article 227 is superintendence; Article 136 is special leave; Articles 245 and 246 make competence reviewable. The Constituent Assembly called Article 32 the heart and soul and deliberately rejected due process.

Test yourself

1. Why does Article 13(3)(a) matter to delegated legislation? Because it makes a rule, regulation, bye-law or notification "law", so it is void if inconsistent with a fundamental right, exactly as an Act would be.

2. What does Article 13(4) do and why was it needed? It excludes constitutional amendments from Article 13. It was inserted by the Twenty-fourth Amendment to overcome the decision that an amendment abridging fundamental rights was itself void under Article 13.

3. Which article makes judicial review available for something other than a fundamental right? Article 226, which is available for the enforcement of fundamental rights "and for any other purpose", and Article 246 read with Article 245 for legislative competence.

Why it matters here. It is the limit of the third limb, and it is the sentence that stops certiorari becoming an appeal.

What is NOT reviewable at all

A judicial order of a High Court or the Supreme Court, under Article 32. Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

Facts. During a defamation suit a judge of the Bombay High Court orally directed that the evidence of a witness should not be published, to protect the witness's business. A journalist challenged the direction under Article 32 as a breach of his freedom of speech.

Held. A judicial order of a competent court cannot violate a fundamental right and Article 32 does not lie against it; the remedy is an appeal. Certiorari does not issue against a High Court, which is a superior court of record. Justice Hidayatullah dissented.

Why it matters here. It fixes the outer boundary of the third limb: review runs downwards through the judicial hierarchy, never sideways or upwards.

A worked example

Three grievances arrive on the same day. A trader says the new State Act taxing entry of goods is beyond the State's competence. A shopkeeper says the licensing officer refused his licence without hearing him. A landlord says the Rent Controller fixed a standard rent by misreading the section that defines standard rent.

Three limbs, three answers. The first is legislative review: the test is List II and Part XIII, and the remedy is a declaration that the Act is void. The second is administrative review: the ground is breach of natural justice and the remedy is certiorari quashing the refusal, with a direction to hear him. The third is review of a judicial act of a subordinate tribunal: the ground is an error of law apparent on the face of the record, and Syed Yakoob decides that a misconstruction of the section is such an error, whereas a complaint that the Controller believed the wrong witness is not.

Distinctions that carry marks

What this does NOT mean

It does not mean the three never overlap. A single petition often attacks a rule, the order made under it and the tribunal that upheld the order.

It does not mean review of legislation is unavailable against delegated legislation. It is available on wider grounds, not narrower.

It does not mean Article 227 duplicates certiorari. Article 227 is supervisory and can be exercised without a party asking, and it is worked in [Article 227: The Power of Superintendence].

Quick revision

Three limbs: legislation tested against the Constitution; administrative action tested against the statute and the Constitution; subordinate judicial action tested for jurisdiction and error on the face of the record. Syed Yakoob is the limit of the third: no reappreciation of evidence, no correction of errors of fact, but a finding on no evidence is an error of law. Mirajkar fixes the boundary: a judicial order of a superior court is not challengeable under Article 32.

Test yourself

1. A tribunal believes a witness the High Court would not have believed. Is that reviewable? No. That is an error of fact and the writ court does not reappreciate evidence: Syed Yakoob.

2. A tribunal finds a fact with no evidence whatever before it. Is that reviewable? Yes. A finding of fact resting on no evidence at all is an error of law and is correctible.

3. Can a High Court's own judgment be attacked under Article 32? No. Mirajkar holds that a judicial order of a competent court does not violate a fundamental right and that certiorari does not run against a superior court of record; the remedy is an appeal.

A worked example

Parliament passes an Act empowering the Central Government to prohibit the export of any commodity in the public interest. The Government makes a rule prohibiting the export of a class of goods and, on the same day, an order refusing a particular exporter's licence.

The Act. Reviewable for competence, which is plainly present, and for violation of Article 19(1)(g), where the Government will rely on Article 19(6) and the court will presume constitutionality.

The rule. Reviewable for being outside the Act, for violating Article 14 or 19, and for manifest arbitrariness. No hearing was owed before it was made.

The order. Reviewable for want of a hearing, for irrelevant considerations, for improper purpose, for want of reasons and for unreasonableness. Its motive is examinable and the file can be called for.

Three attacks, three sets of grounds, one afternoon's work by a ministry.

Distinctions that carry marks

What this does NOT mean

It does not mean a court never looks at facts when reviewing a statute. It may look at the object and effect of the law, and at the mischief, but not at the wisdom of the choice.

It does not mean a quashed order can always be remade. Where the defect is want of power, no fresh order is possible at all; where it is want of a hearing, one is.

It does not mean an administrative act enjoys no presumption of regularity. An order expressed in the name of the Governor is presumed regularly made, but that is a presumption about authentication and not about validity.

Quick revision

Legislation is tested against the Constitution, carries a presumption of validity, has an unexaminable motive, owes no hearing and no reasons, and if struck down is void for everybody. Administrative action is tested against the parent Act and the Constitution, carries no such presumption where rights are affected, has an examinable motive, owes a hearing where civil consequences follow and ordinarily reasons, and if quashed is quashed between the parties. Delegated legislation sits between the two: legislative for natural justice, administrative for ultra vires, and law under Article 13(3)(a).

Test yourself

1. Why is the motive of a legislature irrelevant but that of an administrator relevant? Because a legislature exercises a plenary power and the court asks only what the law does, whereas an administrator exercises a power conferred for a stated purpose, so using it for another purpose is itself the vice.

2. What happens after an order is quashed for want of a hearing? The authority may hear the affected person and make a fresh order, which may be to the same effect, because the defect was in the process.

3. Which regime governs a rule made under an Act? Both. It is legislative for natural justice, so no hearing is owed; it is administrative for ultra vires; and it is law under Article 13(3)(a), so Part III applies to it.

Limits the court imposes on itself. Alternative remedy, laches, res judicata, disputed questions of fact, the conduct of the petitioner, academic questions, and restraint in contractual and economic matters. Each is discretionary, each has exceptions, and each is a chapter of Module IV.

The proposition that ties them together

Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899.

Facts. Unsuccessful candidates for admission to medical colleges challenged the selection process. The High Court had earlier directed the State Government to entrust selection to an independent statutory body and, until that was done, to a body free of executive influence, and the question was how far a court may direct the executive on a matter of policy.

Held. 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, and the legislature, executive and judiciary must function within their own spheres. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and the executive, but while their powers 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.

Why it matters here. It is the sentence that explains why the limits in Module IV are self-imposed, and why that is a reason to observe them rather than an excuse for ignoring them.

A worked example

A petitioner asks a High Court to direct the State to build a hospital in his taluka, to quash the transfer of a doctor made three years ago, and to decide whether he or a rival was the better candidate for a lectureship.

The first is refused because building a hospital is policy and allocation of resources: Asif Hameed. The second is refused for laches: three years is stale and third-party rights have grown up, on the reasoning of [Laches and Delay, which MU Prints as Latches]. The third is refused because comparative merit is for the expert body: University of Mysore v. C.D. Govinda Rao. Not one of the three refusals is a want of jurisdiction; every one of them is a limit, and two of the three are discretionary.

What this does NOT mean

It does not mean restraint is timidity. The same court that refuses to build a hospital will strike down a constitutional amendment.

It does not mean the limits are fixed. Public interest litigation moved several of them, and the abuse of it moved some of them back.

It does not mean a limit can be turned into an ouster. A court declining to interfere is exercising the jurisdiction, not losing it.

Quick revision

Scope: every organ, bodies beyond Article 12 through Article 226, non-statutory power, decisions made final by statute, and it cannot be excluded because it is basic structure. Limits: inherent ones, that review is of legality and not merits, no reappreciation of evidence, no substitution, no policy; and self-imposed ones, alternative remedy, laches, res judicata, disputed facts, conduct, academic questions and restraint in commercial matters. Asif Hameed is the authority for the self-imposed discipline of judicial restraint.

Test yourself

1. Give three propositions about the scope of review with an authority for each. It reaches bodies discharging a public duty even outside Article 12, Zee Telefilms; it reaches decisions made final even by a constitutional amendment, Kihoto Hollohan; and it cannot be taken away because it is part of the basic structure, L. Chandra Kumar.

2. Which limits are not discretionary? Those inherent in the nature of review: legality not merits, no reappreciation of evidence, no substitution of the court's own decision, no adjudication of policy.

3. What is the only check on the court's own power, according to Asif Hameed? The self-imposed discipline of judicial restraint.

Stage three: the doctrine protects itself

Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.

Facts. The Forty-second Amendment inserted clauses (4) and (5) into Article 368, providing that no amendment shall be called in question in any court on any ground and that there shall be no limitation whatever on the constituent power of Parliament, and it extended Article 31C so that every directive principle took primacy over Articles 14 and 19.

Held. Both clauses were struck down. Clause (5) transgresses the limitations on the amending power: no constituent power can go higher than a power to amend without any limitation whatever, which would even permit the repeal of the Constitution and the abrogation of democracy. Clause (4) is equally bad, because it removes the very review by which the limit is enforced; a limited amending power is itself a basic feature and judicial review is what keeps it limited. The extension of Article 31C was also struck down, the harmony and balance between fundamental rights and directive principles being a basic feature.

Why it matters here. It is the clearest statement that judicial review is not merely a power of the courts but the mechanism that makes every other limit real.

Stage four: review survives an ouster in the Tenth Schedule

Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686.

Facts. The Tenth Schedule, inserted by the Fifty-second Amendment, disqualifies a member for defection and by paragraph 6 makes the Speaker's decision final. Paragraph 7 provided that no court shall have any jurisdiction in respect of any matter connected with such disqualification.

Held. Paragraph 7 was struck down. It took away the jurisdiction of the High Courts under Article 226 and of the Supreme Court under Article 32 in a matter, and so changed Articles 136, 226 and 227, which required ratification by the States under the proviso to Article 368(2) and had not been obtained. Paragraph 7, in so far as it takes away the power of judicial review, which is itself a basic feature, is liable to be struck down. The rest of the Schedule survived on severability. The Speaker acting under paragraph 6 acts as a tribunal, so the decision is reviewable, though only for jurisdictional errors, violations of a constitutional mandate, mala fides, non-compliance with natural justice and perversity, and only after the decision is made.

Why it matters here. Two lessons at once: an ouster inserted by constitutional amendment can fail, and a decision made final by the Constitution is still reviewable, though narrowly.

Stage five: review is placed beyond the reach of tribunalisation

L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, held that the power of 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 that extent. It is worked in [Tribunals, Article 323A and L. Chandra Kumar].

Stage six: the Ninth Schedule is opened

I.R. Coelho v. State of Tamil Nadu, decided on 11 January 2007.

Facts. A number of statutes had been placed in the Ninth Schedule after 24 April 1973, the date of Kesavananda, so as to attract Article 31B, which says that no law in the Ninth Schedule shall be void on the ground that it is inconsistent with a fundamental right. The question before a nine-judge bench was whether such laws are immune altogether.

Held. A law placed in the Ninth Schedule after 24 April 1973 is open to challenge on the ground that it damages or destroys the basic structure, and the test is the effect of the law on the rights in Part III, applying the rights test and the essence of the rights test. Article 31B gives protection but not immunity from basic structure review.

Why it matters here. It closes the last device by which review could be excluded wholesale.

A worked example

Parliament amends the Constitution to provide that no court shall question any order made under a new central Act regulating digital platforms, and that all disputes shall be decided by a commission whose decision shall be final.

The exclusion of the High Courts fails under L. Chandra Kumar, because review under Articles 226 and 227 is basic structure. Even a well-drafted amendment fails under Kihoto Hollohan if it alters Articles 136, 226 and 227 without ratification. And an attempt to insulate the Act by putting it in the Ninth Schedule fails under I.R. Coelho, because it was inserted after 24 April 1973.

What this does NOT mean

It does not mean amendments cannot touch judicial review at all. The forum can be changed, as tribunals show; what cannot be removed is the review itself.

It does not mean every basic feature is settled. The list is open, and courts have added to it case by case.

It does not mean an ordinary statute is tested against the basic structure. An ordinary law is tested against the Constitution's provisions; the basic structure test is for amendments, subject to what Coelho decided about Ninth Schedule laws.

Quick revision

Kesavananda 1973: the amending power cannot alter the basic structure. Indira Nehru Gandhi 1975: Article 329A(4) struck down, because it decided a dispute without law and ousted the court. Minerva Mills 1980: Article 368(4) and (5) struck down, because a limited amending power is a basic feature and review is what keeps it limited. Kihoto 1992: paragraph 7 of the Tenth Schedule struck down for want of ratification and for taking away review. L. Chandra Kumar 1997: review by the High Courts and the Supreme Court is basic structure. I.R. Coelho 2007: Ninth Schedule laws after 24 April 1973 are open to basic structure review.

Test yourself

1. Why did clause (4) of Article 368 fail in Minerva Mills? Because it removed the judicial review by which the limits on the amending power are enforced, and a limited amending power is itself a basic feature.

2. On what ground did paragraph 7 of the Tenth Schedule fail? It changed Articles 136, 226 and 227 without the ratification the proviso to Article 368(2) requires, and it took away the power of judicial review which is a basic feature.

3. What is the significance of 24 April 1973 in I.R. Coelho? It is the date of Kesavananda; laws placed in the Ninth Schedule after it are open to challenge for damaging the basic structure.

Why it matters here. It is MU's sentence in a single case: an order with no discernible reason is invalid, and the absence of a bad motive does not save it.

The reasons must be capable of being seen. That is why the duty to record reasons matters, and S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, holds that an administrative authority exercising quasi-judicial functions must record reasons whether or not its order is subject to appeal.

The third requirement: not whimsically for any ulterior purpose

Whimsically is arbitrariness, and in India arbitrariness is unconstitutional and not merely unattractive. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, states that 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.

An ulterior purpose is the ground of improper purpose and, where dishonesty is shown, of mala fides. A power given for one purpose and used for another is void even though the authority had the power and even though the result may be desirable.

The sentence turned into an answer plan

A worked example

A municipal commissioner cancels the allotment of a market stall to a trader. The file shows no complaint against the trader, no inspection, and a note from a corporator asking that the stall be given to somebody else. The order recites only that the cancellation is in the public interest.

Validity: the power to cancel exists, so the first requirement is met. Discernible reasons: there is no material at all, which is S.R. Venkataraman, and no reasons are recorded, which is S.N. Mukherjee. Ulterior purpose: the note on the file shows the real reason, which is not a public purpose at all. Arbitrariness: on Royappa the order offends Article 14 for that reason alone. The order is quashed on all three limbs of MU's sentence.

What this does NOT mean

It does not mean the State must justify every act in court. The requirement is that reasons exist and are discernible where rights are affected, not that every administrative act is defended.

It does not mean the court weighs the reasons. It asks whether there were relevant reasons, not whether they were the best ones.

It does not mean an ulterior purpose must be dishonest. Improper purpose succeeds without proof of dishonesty, which is why it is the more useful ground.

Quick revision

MU's sentence has three limbs. Validly, meaning with power, which is ultra vires. Discernible reasons, meaning material that exists, is relevant and is stated, which is S.R. Venkataraman and S.N. Mukherjee. Not whimsically for any ulterior purpose, meaning not arbitrary under Article 14 as in Royappa, and not for a purpose other than the one the power was given for. The sentence is a syllabus of Module II in one line.

Test yourself

1. Break MU's sentence into its three requirements. Validity, that is power; discernible reasons, that is relevant material actually applied and stated; and the absence of whim or ulterior purpose, that is non-arbitrariness and good faith.

2. Which case shows that an order can be bad although nobody acted dishonestly? S.R. Venkataraman: malice in law is assumed from a wrongful act done without just cause, and an order with no supporting material is an abuse of power.

3. Why is whimsical action unconstitutional in India rather than merely bad administration? Because Royappa makes arbitrariness the antithesis of equality, so an arbitrary act violates Article 14.

Sense three: jurisdictional error

An authority may begin with jurisdiction and lose it. That is the subject of [Jurisdictional Error and the Collateral Fact Doctrine], and the classic statement is in Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147: 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.

The vocabulary a beginner needs

Ultra vires. Beyond the powers. An act outside jurisdiction is ultra vires and void.

Void and voidable. A void act is a nullity from the beginning and in law never existed. A voidable act is valid until set aside. The difference matters when a person ignores an order instead of challenging it, and it is worked in [Void or Voidable: The Effect of a Breach of Natural Justice].

Nullity. Another word for a void act. Anisminic's phrase there are no degrees of nullity means that a decision is either a nullity or it is not.

Coram non judice. Before a person who is not a judge, that is, before a body with no jurisdiction at all.

Functus officio. Having discharged its office. An authority which has decided cannot ordinarily decide again, but Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233, holds that certiorari still lies against a tribunal which has become functus officio, because the writ is directed against the record.

A worked example

A Collector, acting under a State Act which allows him to cancel a dealer's licence "after giving him an opportunity of being heard, where the dealer has been convicted of an offence under this Act", cancels a licence. The dealer was never convicted; he was acquitted. He was also not heard.

Sense two: the conviction is a jurisdictional fact and it did not exist, so the Collector had no power at all and the order is a nullity, not merely an irregular exercise of power. Sense three: even if there had been a conviction, deciding without a hearing when the section required one would be a jurisdictional error on the Anisminic reasoning. Sense one: the dealer moves the High Court under Article 226, and if the licence relates to premises within Maharashtra the Bombay High Court has territorial jurisdiction under Article 226(1), and would have it under Article 226(2) even if the order came from Delhi.

Distinctions that carry marks

What this does NOT mean

It does not mean every mistake is jurisdictional. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621, holds that a quasi-judicial authority acting under a valid law and within its jurisdiction does not violate a fundamental right merely by construing the law wrongly.

It does not mean the court decides jurisdiction by asking the authority. An authority cannot give itself jurisdiction by wrongly deciding that the jurisdictional fact exists.

It does not mean jurisdiction is only about territory. Territory is one of four elements, and it is the least often decisive.

Quick revision

Three senses: the court's own power to entertain, the authority's power to decide, and the error that destroys that power. The court's jurisdiction has four elements: subject matter, territory under Article 226(1) and (2), the person, and standing. The authority's jurisdiction is bounded by person, place, subject matter and the conditions the statute attaches, the last producing the jurisdictional fact. Jurisdictional error is Anisminic: asking the wrong question, considering what should not be considered, refusing to consider what should be. Want of jurisdiction makes a nullity; error within jurisdiction does not.

Test yourself

1. What is a jurisdictional fact? A fact whose existence the statute makes a condition of the power, so that if the fact does not exist the authority has no power at all.

2. Why does certiorari lie against a tribunal that is functus officio? Because the writ is directed against the record and the record survives the tribunal: Hari Vishnu Kamath.

3. Distinguish want of jurisdiction from an error within jurisdiction in one line. Want of jurisdiction means the authority never had the power, so the decision is a nullity; an error within jurisdiction means it had the power and exercised it wrongly, so the decision stands until set aside.

"Whichever may be appropriate." The Court chooses the writ; a petitioner who asks for the wrong one does not fail for that reason.

Clause (3). Parliament may empower another court. It has never been used to any significant extent, because Article 226 already gives every High Court a wider power.

Clause (4). The right may be suspended only as the Constitution itself provides, which is Article 359 during an Emergency, and what that produced is the subject of [Habeas Corpus in Practice: Preventive Detention and ADM Jabalpur].

The Court as guarantor

Romesh Thappar v. State of Madras, AIR 1950 SC 124.

Facts. The Government of Madras banned the circulation of the petitioner's journal under a public order statute. He came directly to the Supreme Court under Article 32 without first going to the High Court, and the State objected that he should have gone there first.

Held. The objection was rejected. Article 32 confers a fundamental right to move the Supreme Court itself, and the Court is constituted the protector and guarantor of fundamental rights; it cannot refuse to entertain an application simply because the applicant might have moved the High Court. The ban was struck down.

Why it matters here. It is the earliest and the most quoted statement of what Article 32 means, and it disposes of the commonest objection.

Prem Chand Garg v. Excise Commissioner, U.P., Allahabad, AIR 1963 SC 996.

Facts. A rule made by the Supreme Court under Article 145 required a petitioner under Article 32 to furnish security for the respondent's costs and allowed the petition to be dismissed if he did not.

Held. The rule was struck down. The right to move the Court under Article 32 is itself a guaranteed fundamental right, and the Court's own rule-making power cannot be exercised so as to whittle it down or place an impediment in its way.

Why it matters here. It shows how strong the guarantee is: not even the Court's own procedure may cut it down.

A worked example

A journalist is detained under a preventive detention law and the grounds of detention are never furnished to him. His family wants the quickest possible remedy.

Article 32 is available because Articles 21 and 22 are engaged. The proceeding may be a letter, on Bandhua Mukti Morcha. The writ is habeas corpus, but the petitioner need not name it, because clause (2) lets the Court issue whichever is appropriate. Production of the body is not essential to the hearing: Kanu Sanyal v. District Magistrate, Darjeeling, AIR 1973 SC 2684. And if he has already been released, the Court may still award compensation under Rudul Sah rather than dismissing the petition as infructuous.

What Article 32 is NOT

It is not available for an ordinary legal wrong. No fundamental right, no Article 32.

It is not available against a judicial order of a High Court. Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

It is not a bar to going to the High Court first. It is a choice, and the Court now ordinarily asks a petitioner to go to the High Court where the facts need investigation.

It is not an appeal. Everything in [What Judicial Review Is] applies.

Quick revision

Four clauses: the guaranteed right to move the Court, the power to issue directions, orders or writs including the five, Parliament's unused power to empower another court, and the bar on suspension except as the Constitution provides. The guarantee makes Article 32 itself a fundamental right, which is Kochuni, and the Court is the protector and guarantor, which is Romesh Thappar. Its own rules cannot cut it down, which is Prem Chand Garg. It is confined to fundamental rights, which is its great limit, and it is not confined to the five writs, which is its great flexibility.

Test yourself

1. Why is Article 32 more than a remedy? Because it sits in Part III and clause (1) guarantees it, so the right to the remedy is itself a fundamental right.

2. Can the Supreme Court award compensation under Article 32? Yes. Clause (2) permits directions or orders as well as writs, and Rudul Sah awarded compensation for a violation of Article 21.

3. State the single biggest limitation of Article 32. It is available only for the enforcement of a fundamental right, whereas Article 226 is available for that and for any other purpose.

Each is worked in its own chapter, from [The Writ of Habeas Corpus] to [The Writ of Quo Warranto].

Why the writs make Ambedkar's claim good

They cover every kind of wrong. Liberty is protected by habeas corpus, inaction by mandamus, excess of jurisdiction by prohibition and certiorari, and usurpation of office by quo warranto. There is no gap.

They are constitutional and not statutory. No Act created them and no Act can abolish them.

They are not tied to English forms. T.C. Basappa v. T. Nagappa, AIR 1954 SC 440, holds that Indian courts issue orders in the nature of the writs, keeping the broad principles and discarding the technicalities.

They are not exhaustive. The words "directions or orders or writs" allow the Court to fashion a remedy that fits, which is how compensation was given in Rudul Sah v. State of Bihar, AIR 1983 SC 1086, and how continuing directions are given in public interest cases.

Two qualifications an honest answer includes

The heart can be stopped. Article 359 allows the right to move a court for the enforcement of Part III rights to be suspended during an Emergency, and Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, showed what that meant in practice. The Forty-fourth Amendment answered it by providing that Articles 20 and 21 cannot be suspended.

The remedy is discretionary in its exercise even where the right is not. The Court has put itself under restraint, as Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898, says in terms: Article 32 gives the right to move the Court and the State can place no hindrance in the way, but once the matter has reached the Court, the extent or manner of interference is for the Court to decide.

A worked example

A municipal body demolishes a shop without notice, refuses to decide the shopkeeper's pending application for an alternative site, and appoints as its licensing officer a person who does not hold the qualification the Act prescribes.

Three writs, one petition. Certiorari to quash the demolition order, mandamus to compel a decision on the pending application, and quo warranto against the officer. If the shopkeeper had been arrested during the demolition, habeas corpus as well. The example is the answer to MU's question in miniature: the writs together leave no wrong without a remedy, and that is why the article that carries them was called the heart and soul.

What this does NOT mean

It does not mean Article 32 is superior to Article 226. Article 226 is wider in scope; Article 32 is stronger in guarantee.

It does not mean the Supreme Court must decide every petition itself. It regularly relegates a petitioner to the High Court where facts must be investigated.

It does not mean the phrase is a rule of law. It is Ambedkar's assessment, quoted because it is accurate, not because it decides cases.

Quick revision

Ambedkar in the Constituent Assembly on 9 December 1948 called Article 32 the very soul and the very heart of the Constitution, because without it the rights would be declaratory. The remedy sits inside Part III, so it cannot be abridged by ordinary law. The five writs together cover liberty, inaction, excess of jurisdiction and usurpation of office, and the words directions, orders or writs let the Court go beyond them. Two qualifications: Article 359 and the Emergency, answered by the Forty-fourth Amendment; and the Court's self-restraint in the exercise of the jurisdiction.

Test yourself

1. Why did the framers put the remedy inside the chapter of rights? So that it could not be taken away by ordinary legislation, since Article 13(2) voids any law abridging a Part III right.

2. Which writ answers inaction, and which answers usurpation of office? Mandamus answers inaction; quo warranto answers usurpation of a public office.

3. Give one qualification to Ambedkar's claim. Article 359 permitted the right to move a court for Part III rights to be suspended during an Emergency, as ADM Jabalpur showed; the Forty-fourth Amendment now protects Articles 20 and 21 from suspension.

Limit four: the restrictions the Constitution itself allows

Article 33. Parliament may by law determine to what extent the rights in Part III shall, in their application to the members of the Armed Forces, to the forces charged with the maintenance of public order, to persons employed in intelligence organisations and to persons employed in the telecommunication systems set up for those forces, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Article 34. Notwithstanding the foregoing provisions, Parliament may by law indemnify any person in the service of the Union or of a State, or any other person, in respect of any act done in connection with the maintenance or restoration of order in any area within India where martial law was in force, and may validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law.

Article 35. Parliament, and not a State legislature, has the power to make laws with respect to the matters in Articles 16(3), 32(3), 33 and 34, and with respect to prescribing punishment for the acts declared offences under Part III.

Together these three articles are a reminder that Part III is not absolute even in its own terms.

Limit five: suspension in an Emergency

Article 359(1) permits the President, while a Proclamation of Emergency is in operation, to declare by order that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order shall remain suspended. What that produced is Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, worked in [Habeas Corpus in Practice: Preventive Detention and ADM Jabalpur]. The Forty-fourth Amendment inserted clause (1A) and amended the article so that Articles 20 and 21 cannot now be suspended.

Limit six: the Court's own discretion

Article 32 is a right to move the Court; it is not a right to a particular order. Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898, puts it exactly: Article 32 gives the right to move the Court and the State cannot place any 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. That is why laches, res judicata and the availability of an alternative remedy operate under Article 32 as well, though less strictly than under Article 226.

A worked example

Four petitioners come to the Supreme Court on the same day. The first says a State law taxing his trade is confiscatory. The second says the Sales Tax Officer wrongly held his goods to be taxable at twelve per cent instead of five. The third says a High Court judgment against him is contrary to Article 14. The fourth, a soldier, says the Army Act denies him the right to form an association.

The first is maintainable: a statute is challenged for infringing Article 19(1)(g). The second fails on Ujjam Bai: it is an error within jurisdiction under a valid law. The third fails on Mirajkar: a judicial order of a competent court is not amenable to Article 32, and his remedy is an appeal or, at the last, a curative petition under Rupa Ashok Hurra. The fourth fails so far as the restriction is authorised by Article 33.

What this does NOT mean

It does not mean Article 32 is narrower than it looks in practice. Public interest litigation, the arbitrariness doctrine and the power to give directions and compensation have made it very wide.

It does not mean an alternative remedy bars Article 32. Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080, holds that it is not a bar as it may be under Article 226, though the Court often relegates a petitioner to the High Court on facts.

It does not mean Article 359 was repealed. It was amended: Articles 20 and 21 are now protected from suspension, but the article itself remains.

Quick revision

Six limits: a fundamental right must be infringed; an error within jurisdiction under a valid law is not an infringement, which is Ujjam Bai; a judicial order of a competent court is outside Article 32, which is Mirajkar and Rupa Ashok Hurra; Articles 33, 34 and 35 permit restriction for the Forces, indemnity after martial law and Parliament's exclusive power; Article 359 permits suspension in an Emergency, subject now to Articles 20 and 21; and the manner of interference is for the Court, which is Tilokchand Motichand.

Test yourself

1. Why did Ujjam Bai fail? Because the authority acted under a valid law and within its jurisdiction, and a wrong construction within jurisdiction does not violate a fundamental right; the remedy was an appeal or certiorari under Article 226.

2. What did the Forty-fourth Amendment change about Article 359? It provided that the rights conferred by Articles 20 and 21 cannot be suspended, so a habeas corpus petition on those grounds survives an Emergency.

3. Does an alternative remedy bar a petition under Article 32? Not as a matter of law: Kochuni. But the Court frequently sends the petitioner to the High Court where facts must be investigated.

"For the enforcement of any of the rights conferred by Part III and for any other purpose". The single most important phrase. Article 226 is not confined to fundamental rights; it reaches the enforcement of a statutory right, of a common law right, and of any legal right whatever.

"Directions, orders or writs, including". As under Article 32, the five writs are examples and not a closed list.

Clause (3): the interim order provision nobody teaches

It is worth knowing because it is the only place in the Constitution that regulates the procedure of a writ court. It was substituted by the Forty-fourth Amendment, and its effect is that an ex parte interim order cannot be allowed to run indefinitely: if the affected party applies to vacate it and serves the application, the High Court must decide within two weeks, failing which the interim order automatically falls.

Article 227

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) allows the High Court to call for returns, to make and issue general rules and prescribe forms for regulating the practice and proceedings of those courts, and to settle tables of fees. Clause (4) excludes any court or tribunal constituted by or under any law relating to the Armed Forces.

The power is dealt with fully in [Article 227: The Power of Superintendence]; what matters here is that it is a separate power, exercisable without a party asking, and administrative as well as judicial.

Why the two are always set together

Because MU sets them together, twice, as a single whole question, and because in practice a petition against a tribunal is usually filed under both. The reason is prudential: if the court holds that certiorari is not available because the body is not quasi-judicial, the petition can still be entertained as one invoking superintendence.

A worked example

A Co-operative Court in Pune passes an order in a dispute between a society and a member. The society wants to challenge it. The member says the Co-operative Court is not amenable to certiorari because it is a court and not a tribunal, and that in any case no fundamental right is involved.

The second objection fails on the words "and for any other purpose": no fundamental right is needed under Article 226. The first is why the petition is filed under Articles 226 and 227 together: whether the body is called a court or a tribunal, Article 227 reaches all courts and tribunals within the territory. The petition is filed in the Bombay High Court because the Co-operative Court sits within its territory, and it would be maintainable there under Article 226(2) even if the order had been made elsewhere but the cause of action arose in Pune.

What this does NOT mean

It does not mean Article 226 has no limits. All of Module IV applies: alternative remedy, laches, disputed facts, res judicata and the rest.

It does not mean a High Court may enforce any right anywhere. The territorial limits in clauses (1) and (2) are real.

It does not mean Article 226 is available against a private dispute. There must be a public law element; a purely private contractual dispute belongs to a civil court.

Quick revision

Article 226(1): every High Court, within its territories, to any person or authority including any Government, directions orders or writs including the five, for Part III rights and for any other purpose, notwithstanding Article 32. Clause (2): cause of action wholly or in part. Clause (3): an ex parte interim order falls if a vacation application is not decided in two weeks. Clause (4): not in derogation of Article 32(2). Article 227(1): superintendence over all courts and tribunals in the territory. The two are pleaded together because a body that escapes certiorari may still be reached by superintendence.

Test yourself

1. Which words make Article 226 wider than Article 32? "And for any other purpose", which removes the requirement of a fundamental right, and "to any person or authority", which reaches beyond Article 12.

2. What does Article 226(2) add? Jurisdiction where the cause of action arises wholly or in part within the High Court's territories, even though the seat of the authority or the residence of the person is elsewhere.

3. Why are Articles 226 and 227 usually invoked together? Because if the body turns out not to be amenable to certiorari, the High Court can still act in exercise of its superintendence over all courts and tribunals.

Two things that are the same

The writs are the same five, and neither article is confined to them. Both use the words "directions or orders or writs, including", so both courts may fashion the remedy.

Neither can be taken away. Article 32 because it is a fundamental right and part of the basic structure; Article 226 because L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, holds the High Courts' power under Articles 226 and 227 to be part of the basic structure.

Where a petitioner should actually go

To the High Court, ordinarily. The Supreme Court itself now discourages direct petitions where the facts require investigation, and there is no advantage in Article 32 unless the matter is of general importance or the right infringed is plain on admitted facts.

To the Supreme Court where the question is national. A challenge to a central law affecting many States, or a question already decided differently by two High Courts.

To both, never simultaneously. A petition under Article 32 after an Article 226 petition has been decided on the merits is barred by res judicata: Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457, worked in [Res Judicata in Writ Jurisdiction].

A worked example

A State Government cancels a mining lease. The lessee complains that the cancellation was without a hearing, that it was made to favour a rival, and that it violates his right to carry on trade.

If he goes under Article 32, he must anchor the petition to Article 19(1)(g) or to Article 14, and the State will say that the dispute is really about a contract and a statutory rule, so the Court should send him to the High Court on facts. If he goes under Article 226 he needs no fundamental right at all: want of a hearing and improper purpose are enough. He can also join a challenge to the rule under which the cancellation was made. The right answer for a practitioner is the High Court, and the right answer for a student is to know why.

What this does NOT mean

It does not mean Article 226 is superior. It is wider in reach and weaker in guarantee.

It does not mean the Supreme Court will refuse an Article 32 petition on the ground of an alternative remedy. It cannot refuse on that ground alone, but it may relegate the petitioner where facts must be found.

It does not mean a High Court can refuse to hear a fundamental rights petition. Its discretion is judicial, not arbitrary, and refusal must rest on a recognised ground.

Quick revision

Article 32: Supreme Court, a fundamental right in itself, fundamental rights only, whole of India, against the State, not defeated by an alternative remedy, suspendable under Article 359 subject to Articles 20 and 21. Article 226: every High Court, a constitutional power, fundamental rights and any other purpose, within the territory or where the cause of action arises, against any person or authority on a public duty, wholly discretionary, alternative remedy an important consideration, unaffected by Article 359 for non-Part III purposes. Neither can be excluded, and both are wider than the five writs.

Test yourself

1. State the difference in one sentence. Article 32 is stronger because it is itself a fundamental right and cannot be refused where a fundamental right is infringed; Article 226 is wider because it is available for any other purpose and against any person or authority.

2. Why is Article 226 unaffected by an order under Article 359? Because Article 359 suspends the right to move a court for the enforcement of Part III rights, and Article 226 used for any other purpose does not depend on a Part III right.

3. Can a petitioner who lost under Article 226 on the merits move the Supreme Court under Article 32 on the same facts? No. That is barred by res judicata: Daryao.

It is used sparingly and in exceptional cases, to keep subordinate courts within the bounds of their authority, not to correct every error.

It cannot be used to interfere with a discretion properly exercised by the court below.

It does not lie against the Armed Forces tribunals by force of clause (4).

Certiorari and superintendence compared

The consequence for tribunals after L. Chandra Kumar

L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, held that the power of judicial review vested in the High Courts under Articles 226 and 227 is part of the basic structure, and directed that decisions of tribunals be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls. Article 227 is therefore not an ornament: it is one half of the constitutional guarantee that no tribunal in India is final.

A worked example

A Rent Controller in Nagpur adjourns a tenant's application eleven times over three years without recording reasons, and finally dismisses it for want of prosecution on a day when the tenant's advocate was before another court in the same building on the Controller's own list.

Certiorari is available for the final order, because dismissing without notice of the risk is a breach of natural justice. But Article 227 does more useful work: the High Court may set aside the dismissal, direct the Controller to decide the application within a fixed time, and, if the pattern is general, call for returns under clause (2) and issue directions about adjournments. That is superintendence rather than review of a single order, and it is why the two are pleaded together.

What this does NOT mean

It does not mean the High Court can retry the case. The restraint is judge-made but it is real, and an order under Article 227 which reappreciates evidence is routinely set aside.

It does not mean Article 227 is available against every body. It runs to courts and tribunals, not to a purely administrative authority; against those the remedy is Article 226.

It does not mean a party can convert a time-barred appeal into a petition under Article 227. Delay defeats it as it defeats any discretionary remedy.

Quick revision

Article 227(1) gives every High Court superintendence over all courts and tribunals in its territory; clause (2) adds returns, rules, forms and accounts; clause (3) tables of fees; clause (4) excludes Armed Forces tribunals. It is judicial and administrative, exercisable suo motu, wider in its grounds than certiorari and reaching courts as well as tribunals, but it is not appellate and is used sparingly. After L. Chandra Kumar it is part of the basic structure and is the route by which a tribunal's decision reaches a Division Bench of the High Court.

Test yourself

1. Give two respects in which Article 227 is wider than certiorari. It may be exercised without any party applying, and it is administrative as well as judicial, extending to returns, rules and forms under clause (2).

2. Which bodies are outside Article 227 altogether? Courts and tribunals constituted by or under any law relating to the Armed Forces, by clause (4).

3. What is the standing limit on the power? It is supervisory, not appellate: the High Court does not reappreciate evidence or substitute its own view on facts, and it interferes sparingly to keep subordinate bodies within their authority.

The Bombay High Court has jurisdiction under clause (1), because the bank's head office and the decision are within its territory, and the High Court of Bombay's Nagpur Bench sits within the same High Court in any event. Suppose instead the bank's head office were in Chennai. Then the Madras High Court would have jurisdiction under clause (1), and the Bombay High Court would have it under clause (2), because the application, the test, the interview and the effect of the rejection are all in Nagpur, which is a substantial part of the cause of action. If the petitioner had merely posted an application from Nagpur to Chennai and everything else had happened in Chennai, the position would be different, because posting alone is thin.

Distinctions that carry marks

What this does NOT mean

It does not mean a petitioner may choose any High Court. He must show that a part of the cause of action arose there, and even then the court may decline on forum conveniens.

It does not mean an order communicated in a State always creates jurisdiction there. Communication is part of the cause of action in some contexts and merely incidental in others, and the court looks at the substance.

It does not mean two High Courts can decide the same petition. The petitioner elects; and if he files in two, he risks dismissal for suppression, which is dealt with in [The Petitioner's Own Conduct].

Quick revision

Article 226(1): territory of the High Court. Article 226(2): cause of action, wholly or in part, whatever the seat of the authority or the residence of the person. Cause of action is the bundle of facts the petitioner must prove; part is enough, incidental facts are not, and residence alone is not. Even where jurisdiction exists, forum conveniens allows the court to decline in favour of a more appropriate High Court.

Test yourself

1. What did Article 226(2) change? It allowed the High Court within whose territory the cause of action arose to issue a writ, even though the authority sits outside that territory.

2. Is receiving the impugned order at one's residence enough to found jurisdiction? Not by itself. The court asks whether the facts relied on form part of the cause of action in substance, and mere receipt is often incidental.

3. What is forum conveniens used for here? To allow a High Court which technically has jurisdiction under clause (2) to decline it in favour of a more appropriate High Court, since the writ jurisdiction is discretionary.

A worked example

A State Administrative Tribunal dismisses a government servant's application against his compulsory retirement. He wants to go to the Supreme Court because he believes the High Court will take years.

He cannot. After L. Chandra Kumar the route is the Division Bench of the High Court under Articles 226 and 227, and only from that decision may he seek special leave. If instead the order had come from a National Company Law Appellate Tribunal, whose parent Act gives an appeal to the Supreme Court, he would use the statutory appeal. And if his complaint were that the tribunal had no jurisdiction at all, the High Court would still be the first stop, because Article 226 is the constitutional remedy and Article 136 is a discretionary appellate power.

Distinctions that carry marks

What this does NOT mean

It does not mean Article 136 is a regular appeal. Leave is exceptional in principle, whatever the volume of petitions.

It does not mean a refusal of leave decides anything. A dismissal of a special leave petition without reasons is not a declaration of law under Article 141 and does not merge the order below into an order of the Supreme Court.

It does not mean Article 136 reaches every body. It reaches courts and tribunals, so a purely administrative authority is outside it; and clause (2) excludes the Armed Forces.

Quick revision

Article 136(1): discretionary special leave from any judgment, decree, determination, sentence or order of any court or tribunal in India, notwithstanding the ordinary appellate provisions. Clause (2) excludes Armed Forces courts and tribunals. It is a power, not a right; leave first, appeal second; the Court confines it by practice to substantial questions of law and gross miscarriages of justice. After L. Chandra Kumar no direct appeal lies from a tribunal, the High Court coming first.

Test yourself

1. Is there a right of appeal under Article 136? No. The Court grants special leave in its discretion; a party may only petition for it.

2. Which bodies are excluded by clause (2)? Any court or tribunal constituted by or under a law relating to the Armed Forces.

3. Why can a litigant no longer come to the Supreme Court directly from an administrative tribunal? Because L. Chandra Kumar directed that a tribunal's decision must first be tested before a Division Bench of the High Court under Articles 226 and 227.

Four features they share

They are discretionary. Even a good case may fail on laches, alternative remedy or conduct, which is Module IV.

They are public law remedies. There must be a public element; a purely private dispute belongs to a civil court.

They are not confined to their English forms. Basappa.

They do not exhaust the jurisdiction. Both Article 32(2) and Article 226(1) say "directions or orders or writs, including", so the courts may fashion other relief, which is how compensation was awarded in Rudul Sah v. State of Bihar, AIR 1983 SC 1086.

Which writ for which wrong: a decision path

1. Is a person in custody? Habeas corpus.
2. Has an authority failed to do something it is legally bound to do? Mandamus.
3. Is a body about to decide something it has no power to decide? Prohibition.
4. Has a body already decided something it had no power to decide, or decided it unfairly or with an error of law on the face of the record? Certiorari.
5. Is somebody holding a public office he is not entitled to? Quo warranto.
6. None of the five fits, but a public authority has acted unlawfully? A direction or order under Article 226, which is what most petitions now ask for.

A worked example

A municipal corporation appoints as its Chief Fire Officer a man who does not hold the diploma the recruitment rules prescribe. On his first day he orders the sealing of a shop, without notice, in proceedings that were still at the show cause stage.

Quo warranto against the appointment, because a public office is held without the prescribed qualification. Certiorari to quash the sealing order, which was made without a hearing. Prohibition would have been the remedy if the shopkeeper had come to court before the order was made. Mandamus would be added if the corporation had also refused to decide his pending application for renewal of the licence. Four writs, one set of facts, one petition under Article 226.

What this does NOT mean

It does not mean the writs are separate proceedings. One petition can ask for several.

It does not mean the English limitations apply. Basappa keeps the principles, not the forms; and Indian courts have extended certiorari to administrative bodies, which English law did later.

It does not mean the writs are the only remedy. Injunction, declaration, damages and statutory appeals all belong to Module III.

Quick revision

Five prerogative writs from the King's Bench, issued in the King's name as part of the prerogative of superintendence: habeas corpus for unlawful detention, mandamus for failure to perform a public duty, prohibition to stop excess of jurisdiction before decision, certiorari to quash after it, quo warranto against usurpation of a public office. India issues orders in the nature of these writs, keeping the broad principles and discarding the forms, on the authority of Basappa. All are discretionary, all require a public element, and neither Article 32 nor Article 226 is confined to them.

Test yourself

1. What does "in the nature of" add? It frees an Indian court from the technicalities of the English forms while binding it to the broad and fundamental principles that regulate the writs: Basappa.

2. Which writ lies before a decision and which after? Prohibition before, certiorari after; both go to a body exceeding its jurisdiction.

3. Why does it not matter if a petitioner asks for the wrong writ? Because Articles 32(2) and 226(1) let the court issue whichever writ is appropriate, and both articles extend to directions and orders as well.

Why it matters here. It corrects the commonest misunderstanding of the writ, which is that the prisoner must be brought to court.

The date at which legality is judged. The court looks at the legality of the detention on the date of the return, not only on the date of the arrest, so a detention initially bad may be cured and a detention initially good may become bad.

The grounds

No legal authority at all. The detention is by a person with no power to detain.

The order is bad on its face. The detaining authority is not the authority named in the statute, or the period exceeds what the statute allows.

Non-compliance with Article 22. No communication of grounds as soon as may be, no earliest opportunity of making a representation, no reference to an advisory board where required.

Non-application of mind or irrelevant grounds. The satisfaction of the detaining authority is examinable to that extent.

Delay. Unexplained delay between the incident and the detention order, or in considering a representation, vitiates the order.

A worked example

A man is picked up at night by the police and produced before a magistrate two days later. He is then served with an order of preventive detention signed by a District Magistrate, and the grounds are furnished nine days after that. No advisory board has been constituted.

His wife files a habeas corpus petition. She has standing, because anybody may. The return will have to show the source of the initial custody, and two days without production offends Article 22(2). The delay in furnishing grounds offends Article 22(5), which requires them to be communicated as soon as may be. The absence of an advisory board offends Article 22(4). He need not be produced in court for the petition to be decided: Kanu Sanyal. If the detention is found unlawful the order is release, and if he has already been released, compensation may still be given on the principle of Rudul Sah v. State of Bihar, AIR 1983 SC 1086.

What habeas corpus is NOT

It is not a bail application. It tests the legality of the custody, not whether the person should be released on terms.

It is not available where the detention is under a valid judicial order. A person committed to custody by a competent court is lawfully detained, and his remedy is an appeal or a bail application.

It is not defeated by release. Where the person has been released, the petition may become infructuous as to the relief of release, but the court may still declare the detention illegal and award compensation.

It is not a discretionary writ in the ordinary sense. Where the detention is shown to be unlawful, release follows; the court has no discretion to leave a man in unlawful custody.

Quick revision

That you have the body. Anybody may apply, for anybody, against any detainer, public or private. The court issues a rule nisi and decides on the return; production of the body is not essential, which is Kanu Sanyal. Legality is judged at the date of the return. Grounds: no authority, a bad order, breach of Article 22, non-application of mind, irrelevant grounds, delay. It is not a bail application, does not lie against a valid judicial custody, survives release for the purpose of a declaration and compensation, and issues as of right once illegality is shown.

Test yourself

1. Who may file a habeas corpus petition? The detenu or anybody on his behalf, including a stranger, and a letter has been treated as a petition.

2. Must the prisoner be produced in court? No. Kanu Sanyal holds that production is not essential and the court may dispense with it while issuing a rule nisi.

3. At what date is the legality of the detention judged? At the date of the return, so a detention may be cured or may become bad after the arrest.

Why it matters here. It is the case that shows what judicial review is worth when a court declines to exercise it, and it is the reason the Forty-fourth Amendment was passed. The dissent has since been approved and the majority is treated as wrongly decided.

What the Forty-fourth Amendment did

It amended Article 359 so that an order suspending the right to move a court cannot extend to Articles 20 and 21. The practical result is that a habeas corpus petition alleging a deprivation of personal liberty otherwise than by procedure established by law is maintainable even during an Emergency. It also made the proclamation of an Emergency itself harder, by substituting armed rebellion for internal disturbance and by requiring a written communication of the Cabinet's decision.

The grounds that actually succeed today

Delay in passing the order. A long unexplained gap between the prejudicial activity and the detention shows that the satisfaction was not genuine.

Delay in considering the representation. Article 22(5) requires the earliest opportunity to represent, which implies a duty to decide the representation with reasonable despatch.

Non-supply of documents relied on. The grounds must be accompanied by the material on which they rest, or the right to represent is illusory.

Irrelevant or non-existent grounds. Where the order rests on several grounds and one is bad, the detention ordinarily falls, because the court cannot say what weight the bad ground carried.

Failure to consider a bail order or an acquittal. The detaining authority must apply its mind to the fact that the person is already in custody.

A worked example

A man is detained under a State preventive detention law on 1 March on the basis of three incidents said to have occurred the previous June, July and August. The grounds are served on 6 March. He makes a representation on 10 March, which the State considers on 25 May. One of the three incidents ended in his acquittal, a fact not mentioned in the grounds.

Three good points. The gap between August and March is a delay which the State must explain, and an unexplained delay shows a want of genuine satisfaction. The representation lay unconsidered for over two months, which offends Article 22(5). And the acquittal was a material fact not placed before the detaining authority, so there was non-application of mind. Any one of the three would ordinarily lead to release, and the petition may be filed by any relative.

What this does NOT mean

It does not mean preventive detention is unconstitutional. Article 22 authorises it, and the courts test compliance rather than the policy.

It does not mean ADM Jabalpur is still law. The Forty-fourth Amendment removed its foundation for Articles 20 and 21, and the Supreme Court has since said the majority view was erroneous.

It does not mean the court examines the sufficiency of the grounds. It examines their existence, their relevance and the procedure, not whether they justify detention.

Quick revision

Article 22(3) to (7) authorises preventive detention and supplies a minimum procedure: Advisory Board within three months, grounds as soon as may be, earliest opportunity to represent, facts may be withheld in the public interest. ADM Jabalpur held that during a Presidential order under Article 359 no habeas corpus petition was maintainable, Justice Khanna dissenting. The Forty-fourth Amendment answered it by taking Articles 20 and 21 out of Article 359. Today the grounds that succeed are delay in passing the order, delay in deciding the representation, non-supply of documents, irrelevant or non-existent grounds, and non-application of mind.

Test yourself

1. What exactly did the majority hold in ADM Jabalpur? That while the Presidential order under Article 359 suspending the right to move a court for Articles 14, 21 and 22 was in force, no person had locus standi to file a habeas corpus petition challenging a detention.

2. How did the Forty-fourth Amendment answer it? By providing that an order under Article 359 cannot suspend the enforcement of Articles 20 and 21.

3. Why does one bad ground out of three ordinarily destroy a detention order? Because the court cannot know what weight the detaining authority gave to the bad ground, so the subjective satisfaction is vitiated as a whole.

What mandamus can and cannot command

It can command an authority to exercise a discretion it has refused to exercise. An authority which declines to consider an application at all has failed in a duty.

It cannot ordinarily command the discretion to be exercised in a particular way. The choice is the authority's.

But there is an exception, and it is the useful half of the topic. Comptroller and Auditor General of India v. K.S. Jagannathan, AIR 1987 SC 537.

Facts. An office memorandum required that where enough Scheduled Caste and Scheduled Tribe candidates were not available in a departmental qualifying examination on the general standard, the qualifying standard should be suitably relaxed so as to fill the reserved vacancies. The respondents, who belonged to the Scheduled Castes, were denied promotion because the authority refused to relax the standard at all.

Held. The High Courts exercising jurisdiction under Article 226 have power not merely to direct an authority to exercise a discretion which it has refused to exercise, but in an appropriate case to direct that the discretion be exercised in a particular manner and to grant the relief itself, where the authority has failed or refused to exercise its power and no other course would give the aggrieved party effective relief.

Why it matters here. It is the exception that makes the rule usable, and it is the case to cite when an examiner asks whether mandamus can compel a particular result.

A worked example

A retired State employee applies for the release of his gratuity. The office neither sanctions nor rejects it for two years. He writes twice; there is no reply.

Mandamus lies. He has a legal right under the pension rules, the State has a corresponding statutory duty, the duty is public, and he has demanded and been refused, refusal being inferred from silence over two years. The court will ordinarily direct the authority to decide the claim within a fixed time. If the rules leave the authority no choice once the conditions are satisfied, the court may on Jagannathan go further and direct payment, because a direction merely to decide would leave him where he started.

Distinctions that carry marks

What mandamus is NOT

It is not available to enforce a contract. Praga Tools.

It is not available against a purely private person. Except where a statute has imposed a public duty on him.

It is not available to compel the President or a Governor in the exercise of their functions, and it does not run against a person who has ceased to hold the office.

It is not available to enforce a duty already performed, because there is nothing to command.

Quick revision

We command. Five conditions: a legal right, a corresponding legal duty, a public duty, a demand and refusal, and no equally efficacious alternative remedy. Praga Tools states the conditions and excludes purely contractual obligations even where the Government holds most of the shares. Mandamus ordinarily commands that a discretion be exercised, not how; Jagannathan is the exception where nothing less will give effective relief.

Test yourself

1. Why did Praga Tools fail? Because the obligation the workmen sought to enforce arose from a contract, not from a statute, and government shareholding did not make it a public duty.

2. Can mandamus tell an authority what decision to reach? Ordinarily no, only that it must decide. Jagannathan allows it in an appropriate case where the authority has refused to exercise its power and no other course would give effective relief.

3. Why is a demand and refusal required? So that the authority has an opportunity to perform the duty before being commanded; the requirement is dispensed with where a demand would be futile.

A person who has ceased to hold the office, because a command to him would be futile.

To enforce a departmental instruction that is not law, though such an instruction may found a legitimate expectation, which is a different remedy.

Two practical rules

The demand and refusal rule. The applicant must have called on the authority to perform and been refused, expressly or by conduct. It is dispensed with where a demand would obviously be refused, or where the duty is to act without being asked.

Mandamus does not lie to compel a legislature to legislate, nor to compel an authority to make a rule, because rule-making is a legislative function; but it does lie to compel the performance of a statutory duty to consider whether a rule should be made where the Act imposes one.

A worked example

A private unaided school affiliated to a State board refuses to issue a school leaving certificate to a student whose fees are paid, because his father criticised the management. A second student complains that the board itself has not published the results of an examination held eight months ago.

Against the school: the affiliation regulations impose a duty to issue the certificate, which is a public duty connected with the board's statutory functions, so mandamus lies under Article 226 even if the school is not the State under Article 12, which is the Zee Telefilms point. Against the board: it is a statutory authority with a duty to declare results, and eight months of silence is a refusal by conduct, so mandamus lies without any further demand.

Distinctions that carry marks

What this does NOT mean

It does not mean a contractual claim against the State can never reach a writ court. Where the contract is entered into in the exercise of a statutory power and the complaint is of arbitrariness in the process rather than of breach, Article 14 supplies the public law element: Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628.

It does not mean an instruction is worthless. A published policy can create a legitimate expectation, which is enforced under Article 14 rather than as a duty.

It does not mean standing is now unlimited. Janata Dal and the guidelines in State of Uttaranchal v. Balwant Singh Chaufal, AIR 2010 SC 2550, control it.

Quick revision

Who may ask: a person aggrieved; a member of the public where the duty is owed to the public; a bona fide person for those who cannot come; not a busybody. Against whom: the State, statutory authorities, local bodies, instrumentalities, private bodies on a public duty, officials of societies where a statute imposes the duty. Not against: a private obligation, a contract, the President or a Governor, a person out of office, or a non-statutory instruction. Demand and refusal are required unless futile.

Test yourself

1. Can mandamus issue against a private school? Yes, in respect of a public duty arising from affiliation regulations or a statute, because Article 226 reaches any person or authority discharging a public duty: Zee Telefilms.

2. Why does mandamus not lie on a contract with a government company? Because the duty must be public in character, and government shareholding does not convert a contractual obligation into a public duty: Praga Tools.

3. When is the demand and refusal rule dispensed with? Where a demand would obviously be refused or would be futile, and where the duty is one the authority must perform without being asked.

Held. Article 226 is in terms absolute and unqualified and an election tribunal within the High Court's territory falls within its sweep, unaffected by Article 329(b). Certiorari is directed against a record, and since a record can be brought up only through a human agency it is ordinarily issued to the person or authority whose decision is to be reviewed, so a tribunal becoming functus officio is no obstacle. Certiorari lies for a defect of jurisdiction, a violation of natural justice, and an error of law apparent on the face of the record; and it is distinguished from prohibition, which stops what is being done, while certiorari quashes what has been done.

Why it matters here. It fixes the grounds, the target of the writ and the difference from prohibition, all in one case.

Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, then fixes the limit: the jurisdiction is supervisory and not appellate; findings of fact are not reviewed however erroneous; evidence is not reappreciated; an error of law apparent on the face of the record can be corrected but an error of fact cannot, however grave; and a finding reached on no evidence at all is an error of law, while a finding on insufficient evidence is not.

What "the record" means

The order, the pleadings, the issues framed, the evidence recorded so far as it is referred to, and any document forming part of the proceedings. It does not include material which has to be brought in from outside, which is why an error requiring evidence to establish it is not apparent on the face of the record.

A worked example

A Rent Controller holds that premises let for a shop are residential premises, on the ground that the tenant sleeps there, and fixes a standard rent on the residential scale. The order records that finding and quotes the definition section.

Certiorari lies. Whether the premises are residential turns on the construction of the definition section, so the mistake is one of law; it appears from the order itself, so it is apparent on the face of the record; and no evidence from outside is needed to show it. Contrast a complaint that the Controller believed the landlord's witness and not the tenant's, which is an error of fact and outside certiorari on Syed Yakoob.

Distinctions that carry marks

What certiorari is NOT

It is not available against a purely ministerial act, because there is nothing determined.

It is not available against legislative action, including delegated legislation, which is attacked by a declaration that the rule is ultra vires.

It is not available to correct an error of fact.

It is not defeated by the tribunal ceasing to exist.

Quick revision

To be certified. Issued after a decision, against a body determining rights, to quash. Three grounds: want or excess of jurisdiction, breach of natural justice, error of law apparent on the face of the record, with no evidence at all treated as an error of law. Basappa is the foundation, Hari Vishnu Kamath fixes the grounds and the functus officio point, Syed Yakoob fixes the limit. It is not an appeal, not available against ministerial or legislative acts, and not available against a superior court of record.

Test yourself

1. Name the three classical grounds of certiorari. Want or excess of jurisdiction, violation of the principles of natural justice, and an error of law apparent on the face of the record.

2. A tribunal makes a finding with no evidence at all. Is that within certiorari? Yes. Syed Yakoob treats a finding of fact based on no evidence as an error of law; a finding on insufficient evidence is not.

3. Does certiorari lie against a tribunal that is functus officio? Yes. Hari Vishnu Kamath holds that the writ is directed against the record, which survives the tribunal.

Prohibition and certiorari compared

The old formulation, still worth quoting, is that prohibition and certiorari are two sides of the same coin: prohibition is issued at an earlier stage and certiorari at a later one, and both go to the same defect.

A worked example

A commission of enquiry is appointed to investigate the affairs of a co-operative society. It issues summonses to a former director requiring him to produce his personal bank statements for ten years, although the notification appointing it confines its terms of reference to the society's own transactions since 2019.

Prohibition lies. The commission is functioning, so nothing is yet decided; the demand goes beyond the terms of reference, so it is an excess of jurisdiction and not a mere error within it; and the objection is not to the merits of any conclusion the commission might reach. If instead the director's complaint were that the commission had misconstrued a section of the co-operative Act in a report it had already submitted, the remedy would be certiorari, and only if the misconstruction were apparent on the record.

What prohibition is NOT

It is not available after the decision. Then it is certiorari.

It is not available for an error within jurisdiction. Govinda Menon.

It is not an injunction. An injunction is a private law remedy against a party; prohibition is a public law remedy against a body exercising a judicial or quasi-judicial function, and the difference is explained in [Injunction as a Remedy Against the Administration].

It is not available against a legislative or purely administrative act which determines nothing.

Quick revision

Prohibition forbids an inferior court, tribunal or authority from continuing a pending proceeding which is without or in excess of jurisdiction or which offends natural justice. Essentials: proceedings pending, a body determining rights, a defect going to jurisdiction. Govinda Menon holds it is not a remedy for an error within jurisdiction. Prohibition and certiorari are two sides of the same coin, the first preventive and the second corrective, and both may be asked for together.

Test yourself

1. What is the single difference between prohibition and certiorari? The stage: prohibition issues while the proceeding is pending, certiorari after the decision is made.

2. Can prohibition be used for an error of law apparent on the record? No. That is a ground for certiorari; prohibition goes to jurisdiction and to natural justice.

3. Why did prohibition fail in Govinda Menon? Because the disciplinary authority had jurisdiction to enquire into the officer's conduct, so the complaint was about an error within jurisdiction, against which prohibition does not lie.

Why it matters here. It states the object of the writ and, in the same breath, the boundary: the court asks whether the qualification prescribed was possessed, not whether the better candidate was chosen.

What follows a successful writ

The court declares that the holder is not entitled to the office and restrains him from acting in it. It does not appoint the petitioner, and it does not itself fill the vacancy. Acts already done by the holder are not automatically void, because the de facto doctrine protects third parties who dealt with an officer apparently in office.

A worked example

A State appoints as Chairman of a statutory commission a retired officer aged sixty-eight, although the Act provides that no person above sixty-five shall be appointed. A citizen with no connection to the commission files a petition.

Quo warranto lies. The office is public, created by statute, substantive and presently held; the appointment is contrary to an express statutory bar; and the petitioner's want of personal interest is no objection. The court will declare the office vacant. Suppose instead the complaint were that a better qualified person was available. That is Govinda Rao and it fails, because comparative merit is for the appointing body.

Distinctions that carry marks

What quo warranto is NOT

It is not available for a private office.

It is not available against a person who has ceased to hold the office.

It is not a means of testing the wisdom of an appointment. Govinda Rao.

It is not available where the appointment is merely irregular and the irregularity does not go to the eligibility of the holder.

Quick revision

By what authority. Conditions: a public office, substantive in character, created by statute or the Constitution, presently held, and an appointment contrary to law. Any member of the public may apply, acting bona fide. Govinda Rao states the object and the limit: the court checks the prescribed qualification, not comparative merit. Success means a declaration that the office is vacant and an injunction against acting, with the de facto doctrine protecting past acts.

Test yourself

1. Why is the standing rule so wide for quo warranto? Because the wrong is to the public rather than to any individual, so a petitioner need not show a personal injury; he must only be acting bona fide.

2. What does the court NOT examine? The comparative merit of the candidates or the wisdom of the choice, where an expert body has assessed fitness against the prescribed qualifications: Govinda Rao.

3. Are the acts of an ousted officer void? Not automatically. The de facto doctrine protects acts done by a person apparently in office so far as third parties are concerned.

Why it matters here. It is the Indian classification of errors, and it is the answer to the student who thinks every illegality is a jurisdictional one.

Anisminic and the collapse of the distinction

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147.

Facts. Anisminic owned mining property in Egypt which was damaged in 1956, sequestrated, and sold to an Egyptian organisation. A 1959 treaty produced a compensation fund, and an Order in Council laid down who could claim from it. The Foreign Compensation Commission rejected Anisminic's claim because it treated the nationality of the successor in title 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 a determination by the Commission of any application 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. Determination means a real determination and does not include a purported determination which in law has no existence, so a person who says a determination is a nullity is not calling a determination in question at all. 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. There are no degrees of nullity.

Why it matters here. It widened jurisdictional error until almost any error of law could be brought inside it, and in doing so it made ouster clauses very hard to draft. The Indian equivalent, decided on an ordinary finality clause, is Union of India v. Tarachand Gupta and Bros., AIR 1971 SC 1558, worked in [The Finality Clause].

The Indian position today

Indian courts continue to use the language of jurisdictional error, but the practical position is close to the English one. An authority which asks itself the wrong question, acts on irrelevant material, ignores relevant material, or misconstrues the provision that defines its power is treated as having gone outside its jurisdiction. What survives of the distinction is chiefly in the operation of ouster clauses and in Article 32, where Ujjam Bai still bars a petition founded on an error within jurisdiction.

A worked example

A statute allows a Collector to cancel the registration of a dealer who has "failed to file returns for three consecutive quarters". The Collector cancels the registration of a dealer who has filed all three returns but filed two of them late.

Whether the returns were filed is the jurisdictional fact, and it existed in the dealer's favour, so the Collector had no power at all: the cancellation is a nullity. Suppose instead the returns were genuinely not filed, and the Collector cancelled without giving the hearing the section requires. That too is a nullity on the Anisminic reasoning, because he did in the course of the enquiry something that made the decision void. Now suppose he heard the dealer and then wrongly held that a return filed by post on the last day was out of time. That is an error within jurisdiction, and the dealer must show that it is apparent on the face of the record before certiorari will lie.

Distinctions that carry marks

What this does NOT mean

It does not mean the authority decides its own jurisdiction. A body cannot confer power on itself by wrongly finding that the jurisdictional fact exists.

It does not mean every error is now jurisdictional. Ujjam Bai still stands for Article 32, and a pure error of fact remains outside review on Syed Yakoob.

It does not mean a nullity may safely be ignored in practice. A person who ignores an order takes the risk that a court will hold it merely voidable, which is why the point is worked in [Void or Voidable: The Effect of a Breach of Natural Justice].

Quick revision

Two kinds of error: going to jurisdiction, which makes a nullity, and within jurisdiction, which does not. A jurisdictional or collateral fact is a fact on which the power depends, and its existence is for the court. Ujjam Bai classifies the three situations in which an order is ultra vires and holds that a wrong construction within jurisdiction infringes no fundamental right. Anisminic widened jurisdictional error to asking the wrong question, considering the irrelevant and ignoring the relevant, and said there are no degrees of nullity.

Test yourself

1. What is the practical importance of calling an error jurisdictional? The decision is a nullity, so it is unprotected by an ouster clause, is quashable by certiorari without more, and in principle may be ignored.

2. Give Lord Reid's three examples from Anisminic. Asking the wrong question, taking into account something the tribunal was not entitled to consider, and refusing to take into account something it was required to consider.

3. Why did Ujjam Bai fail under Article 32? Because the authority acted under a valid law and within jurisdiction, and a wrong construction in those circumstances is an error within jurisdiction which infringes no fundamental right.

The difficulty nobody can define away

There is no formula for when an error is apparent. The traditional test is that it must be one which can be seen without a long drawn out process of reasoning on points where there may conceivably be two opinions. That is a test of self-evidence, and it means that where a question of construction is genuinely arguable both ways, an authority which takes one of the two views has not committed an error apparent on the record even if the writ court prefers the other view.

A worked example

A licensing authority refuses a licence because the applicant is under twenty-five, and its order sets out the rule, which in fact prescribes a minimum age of twenty-one. A second authority refuses a licence on the ground that the applicant's premises are unsuitable, after inspecting them, and the order records that finding.

The first is an error of law apparent on the face of the record: the rule is quoted in the order, the age is stated in the order, and the mistake is visible without any evidence. Certiorari lies although the authority plainly had jurisdiction. The second is a finding of fact, and however wrong the writ court thinks it, Syed Yakoob puts it outside certiorari; the applicant's remedy is a statutory appeal if there is one.

Distinctions that carry marks

What this does NOT mean

It does not mean any error of law will do. It must be apparent, which is a test about how the error is shown and not about how serious it is.

It does not mean the record includes the writ petition. Affidavits filed in the High Court are not part of the record of the tribunal.

It does not mean the ground is dying. Anisminic pushed many errors of law into the jurisdictional category, but Indian courts continue to use this ground, and it remains the standard way of correcting a misconstruction by a tribunal.

Quick revision

A self-evident error of law appearing from the record, needing no long argument and no outside evidence. The record is the order, the pleadings, the issues and the proceedings, not the affidavits in the writ petition. Hari Vishnu Kamath establishes the ground; Syed Yakoob confines it, excluding errors of fact and reappreciation of evidence, while treating a finding on no evidence as an error of law. Where a question of construction is genuinely arguable both ways, taking one view is not an apparent error.

Test yourself

1. What makes an error "apparent"? That it can be seen from the record itself without a long process of reasoning and without evidence from outside.

2. Is a finding on inadequate evidence correctible? No. Only a finding on no evidence at all, which is treated as an error of law: Syed Yakoob.

3. Why is the ground kept narrow? Because a wide ground would turn certiorari into an appeal on the merits, which the supervisory jurisdiction is not.

Statutory description. Whether found facts answer a statutory expression is a question of law, because the expression must be construed. That is how a great many findings which look factual are brought within review.

Perversity. A finding no reasonable person could reach on the material is treated as an error of law, which is the point at which the fact and law distinction meets Wednesbury.

A worked example

A transport authority refuses a permit, recording three findings: that the applicant does not own a workshop at either terminus, that his financial position is weak, and that a permit to him would not be in the public interest because the route is already served.

The first is a pure question of fact and the court will not touch it, unless the record shows no material at all, when it becomes an error of law. The second is the same. The third is mixed: what the public interest means under the section is a question of law, and whether the facts found answer it is a question of law to that extent, though the assessment within a lawful understanding of the section is for the authority. That is the structure of an answer to a problem question on this topic.

Distinctions that carry marks

What this does NOT mean

It does not mean the court is indifferent to a wrong fact. It means the court has no machinery for finding facts and no jurisdiction to substitute its own.

It does not mean a party can convert a fact into law by calling it perverse. Perversity means no reasonable person could have reached that conclusion, which is a high bar.

It does not mean statutory appeals are subject to the same limits. An appellate authority under a statute may usually reconsider facts; it is the writ court that cannot.

Quick revision

Three categories: fact, law and mixed. Facts are for the authority, law is for the court, and a mixed question is reviewable so far as it involves construing the statute. Syed Yakoob: supervisory not appellate, no reappreciation of evidence, no correction of errors of fact, but a finding on no evidence at all is an error of law and a finding on insufficient evidence is not. The line moves for jurisdictional facts, for statutory descriptions and for perversity.

Test yourself

1. Is "did the employee remain absent for eight days" a question of law or fact? Fact. Whether that absence amounts to abandonment of service under the standing order is a mixed question, and the construction of the standing order is law.

2. When does a finding of fact become reviewable? When there is no evidence at all to support it, or when it is perverse in the sense that no reasonable person could have reached it.

3. Why does the distinction matter more in a writ petition than in an appeal? Because a statutory appellate authority may ordinarily reconsider facts, whereas a writ court exercises a supervisory jurisdiction and cannot.

The relaxation

S.P. Gupta v. President of India, AIR 1982 SC 149.

Facts. Advocates and others challenged a circular of the Law Minister about the transfer and appointment of judges, the non-extension of an additional judge's term, and the practice of transfers. The Union objected that practising lawyers had no standing.

Held. Standing was allowed. Where a legal wrong or legal injury is caused to a person or to a determinate class of persons who by reason of poverty, helplessness, disability or a socially or economically disadvantaged position are unable to approach the court, any member of the public acting bona fide may move the High Court under Article 226 or the Supreme Court under Article 32 for redress. The Court also relaxed procedure, treating a letter as a petition.

Why it matters here. It is the foundation of public interest litigation, and it is important to see exactly what it says: the relaxation is for those who cannot come themselves. It is not a general licence for anybody to litigate anything.

The limit put back

Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305, holds that public interest litigation is intended for the enforcement of the rights of persons unable to approach the court, and that the relaxation does not turn the courts into a forum for a busybody, a meddlesome interloper or a person with a personal, political or oblique motive; the court must satisfy itself of the credentials and the motive of the petitioner. The guidelines in State of Uttaranchal v. Balwant Singh Chaufal, AIR 2010 SC 2550, complete the picture and are set out in [The Abuse of Public Interest Litigation].

A worked example

Four petitions are filed against the same municipal decision to allot a public plot to a private developer. The first is by a resident whose access road will be closed. The second is by a rival developer who lost the bid. The third is by a registered association of slum dwellers who used the plot. The fourth is by a person with no connection to the locality who admits in cross-examination that he was paid to file it.

The first is a person aggrieved and clearly has standing. The second has standing only so far as he complains of illegality in the process affecting his own right to be considered, not on the ground of lost business, which is Jasbhai Desai. The third has standing, both as persons aggrieved and as a public interest petitioner for a disadvantaged group under S.P. Gupta. The fourth is a proxy and will be thrown out under Janata Dal and Balwant Singh Chaufal, probably with costs.

Distinctions that carry marks

What this does NOT mean

It does not mean standing has been abolished. It has been widened for a defined purpose.

It does not mean a competitor never has standing. He has none merely as a competitor; he may have standing if the process in which he participated was unlawful.

It does not mean the court decides standing at the end. It is a threshold question and is often decided first, though a court may leave it over where the merits are strong and the public interest is clear.

Quick revision

Locus standi is the capacity to move the court. The traditional rule required a person aggrieved: Jasbhai Desai's three categories, aggrieved, stranger, busybody, and a trader has no right to be free of lawful competition. Standing was always wider for quo warranto, habeas corpus and duties owed to the public. S.P. Gupta relaxed it for persons who cannot come to court themselves, and treated a letter as a petition. Janata Dal and Balwant Singh Chaufal put the limit back for busybodies and oblique motives.

Test yourself

1. Why did Jasbhai Desai lose? Because his only injury was competition, and a trader has no legal right to be free from lawful competition, so he was not a person aggrieved.

2. State the S.P. Gupta formula. Where a legal wrong is caused to a person or a determinate class who cannot approach the court by reason of poverty, helplessness, disability or a disadvantaged position, any member of the public acting bona fide may move the court.

3. Which writ has always had the widest standing rule and why? Quo warranto, because the wrong is the usurpation of a public office, which injures the public rather than any individual.

The adversarial character. People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.

Facts. A civil liberties organisation wrote to a judge about the conditions of workmen on the construction projects for the Asian Games in Delhi, complaining of payment below the minimum wage, violation of labour laws and the employment of children. The letter was treated as a petition under Article 32.

Held. Public interest litigation is not adversarial litigation but a co-operative effort to secure the rights of the poor; it is brought not for the enforcement of the petitioner's own rights but for those of persons who cannot come to court. Non-payment of minimum wages and the employment of children in construction were violations of Articles 23 and 24 enforceable under Article 32, and the Court appointed persons to inspect and report.

Why it matters here. It supplies the definition of what the proceeding is, which an examiner expects in the first paragraph.

The remedy. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360, ordered the release of undertrial prisoners who had been in custody longer than the maximum sentence for their offences, and held that a speedy trial is an essential ingredient of the reasonable, fair and just procedure required by Article 21 and that free legal services to a prisoner who cannot afford a lawyer are part of that procedure.

What public interest litigation did to judicial review

It changed who can complain. Standing moved from injury to bona fides.

It changed what the court does. From quashing an order to supervising a state of affairs over years.

It changed the source of facts. From pleadings and evidence to commissioners and reports.

It changed the remedy. From a writ to a set of continuing directions.

It changed the subject matter. Prisons, bonded labour, environment, food, education and the police entered the writ jurisdiction.

A worked example

A journalist writes a letter to the Chief Justice of a High Court enclosing photographs of a State-run children's home where the inmates are visibly malnourished and the building is unsafe.

The letter may be registered as a petition on Bandhua Mukti Morcha. The petitioner has standing under S.P. Gupta, because the inmates are children in State custody who cannot come to court. The Court may appoint a commissioner, often a district judge or a member of a legal services authority, to visit and report. The relief will not be a writ of certiorari but a series of directions about food, staffing, medical inspection and repair, with the matter kept on the board for compliance. That is public interest litigation, and no part of it fits the ordinary shape of a writ petition.

What public interest litigation is NOT

It is not a licence for anybody to litigate anything. Janata Dal and Balwant Singh Chaufal.

It is not private interest litigation in disguise. A service dispute or a contractual claim dressed as a public cause is dismissed.

It is not a substitute for the ordinary remedies where the affected person can come to court himself.

It is not confined to Article 32. Article 226 is used far more, and is wider.

Quick revision

Litigation for a class that cannot come to court, resting on relaxed standing under S.P. Gupta and relaxed procedure under Bandhua Mukti Morcha. PUDR defines it as a co-operative and not an adversarial proceeding. Hussainara Khatoon shows the remedy, and gave the right to a speedy trial and to free legal aid under Article 21. It changed who complains, what the court does, where the facts come from, what the remedy looks like and what subjects reach the writ court. Its limits are Janata Dal and Balwant Singh Chaufal.

Test yourself

1. What are the two relaxations that make PIL possible? Standing, so that a bona fide member of the public may sue for a class that cannot come, and procedure, so that a letter may be a petition and the court may appoint commissioners.

2. How does PUDR describe the proceeding? As a co-operative or collaborative effort to secure the rights of the poor, rather than adversarial litigation.

3. Which case gave the right to a speedy trial and to free legal services? Hussainara Khatoon, as ingredients of the reasonable, fair and just procedure required by Article 21.

Costs and exemplary costs. Against a petitioner found to be a proxy, and against a public authority which has misled the court.

Stage five: enforcement

The sanction is contempt. A direction of a writ court which is disobeyed is a civil contempt under the Contempt of Courts Act 1971, and the practical weight of a continuing mandamus comes from that.

The criticisms, stated fairly

Separation of powers. Continuing directions about how a department should be run come close to administration by the court, which is what Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, warns against.

Fact finding without evidence. A commissioner's report is not evidence tested by cross-examination.

Selectivity. The matters taken up depend on who writes and what the court notices.

Dilution. As the jurisdiction grew, so did petitions with private motives, which is why the threshold check exists.

A worked example

A High Court registers a newspaper report about untreated sewage entering a river used for drinking water. It appoints a committee of a district judge, the regional officer of the pollution control board and a professor of environmental engineering to inspect and report within six weeks.

The report finds four untreated outfalls. The court directs the municipal council to close two immediately and to place a plan for the other two within a month, and lists the matter every eight weeks. Two years later the council has done nothing, and the court issues notice for contempt to the chief officer.

Every step in that sequence is a departure from ordinary procedure, and every one of them is authorised by the cases in this chapter.

What this does NOT mean

It does not mean the court decides without hearing the other side. The respondents answer the report and are heard on the directions.

It does not mean continuing mandamus is unlimited. A court which keeps a matter for years without progress is criticised by later benches, and the jurisdiction is exercised with an eye on Asif Hameed.

It does not mean a public interest petition escapes the ordinary bars. Res judicata, laches and suppression apply, and a petitioner who suppresses is dismissed with costs.

Quick revision

Begins with a letter, a petition or suo motu registration; the court verifies credentials and public interest under Janata Dal and Balwant Singh Chaufal; facts come from commissioners appointed under the Bandhua Mukti Morcha principle; the order is often a continuing mandamus with structural directions and compliance reporting; enforcement is by contempt. The criticisms are separation of powers, untested fact finding, selectivity and dilution, and the threshold check is the answer to the last of them.

Test yourself

1. What is epistolary jurisdiction? The practice of treating a letter addressed to the court or a judge as a writ petition, established in Bandhua Mukti Morcha.

2. How does a court find facts in a public interest case? By appointing a commissioner or committee to inspect and report, the report then being put to the respondents for their answer.

3. What is continuing mandamus and what enforces it? A series of directions with the matter kept pending and compliance monitored; disobedience is a civil contempt under the Contempt of Courts Act 1971.

Held. 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, even by a constitutional amendment. Clause (2)(d) of Article 323A, clause (3)(d) of Article 323B and section 28, to the extent that they exclude that jurisdiction, are unconstitutional. Tribunals remain courts of first instance in their fields and litigants must go to them first, but their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls, and no appeal will lie directly from a tribunal to the Supreme Court under Article 136.

Why it matters here. It is the single most important Indian case on the limits of an ouster clause, and it settles both MU's jurisdiction topic and its limits topic at once.

What the decision actually produced

A tier, not a replacement. The tribunal decides first; the High Court supervises.

A Division Bench, not a single judge. So that the level of scrutiny matches the seniority of the body reviewed.

No leapfrogging. A litigant cannot go from a tribunal to the Supreme Court under Article 136.

A cost. The very delay tribunals were created to remove is reintroduced, since a matter may now pass through the tribunal, a Division Bench and the Supreme Court.

The story since

Madras Bar Association v. Union of India, decided on 14 July 2021, is the most recent chapter.

Facts. The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021 amended section 184 of the Finance Act 2017. Its provisos to section 184(1) fixed a minimum age of fifty for appointment and required the search-cum-selection committee to recommend a panel of two names for each post, and section 184(11) fixed a tenure of four years. The Court had already given directions on the same subject in three earlier judgments and in Rojer Mathew, and they had not been followed.

Held. The first and second provisos to section 184(1), section 184(7) and section 184(11)(i) and (ii) were declared void and inoperative. The Court's earlier declaration prevails, so the term of a Chairperson is five years or until the age of seventy and that of a Member five years or until sixty-seven, whichever is earlier. Independence of tribunals is part of the basic structure, and reversing judgments which do not accord with the Government's views undermines the judiciary and violates the supremacy of the Constitution.

Why it matters here. It shows that after L. Chandra Kumar the fight moved from whether the High Court can be excluded to whether the tribunal is independent enough to be trusted with the first decision.

A worked example

A Central Government employee loses before the Central Administrative Tribunal. He wants to move the Supreme Court under Article 136 because it will be quicker.

He cannot. He must move a Division Bench of the High Court within whose territorial jurisdiction the tribunal sits, under Articles 226 and 227. If the High Court declines, he may then seek special leave. If instead the tribunal had refused to hear him at all, the answer would be the same: L. Chandra Kumar makes the High Court the supervising court, whatever the nature of the complaint.

What this does NOT mean

It does not mean tribunals are pointless. They still decide first, and the great majority of cases end there.

It does not mean a litigant may bypass the tribunal. He may not; the High Court will send him back.

It does not mean section 28 is wholly void. It is unconstitutional to the extent that it excludes the constitutional courts.

Quick revision

Sampath Kumar 1986: the High Court may be replaced by an effective institutional substitute, and the Chairman must have judicial experience, appointments being made in consultation with the Chief Justice of India. L. Chandra Kumar 1997: review by the High Courts under Articles 226 and 227 and by the Supreme Court under Article 32 is basic structure; Article 323A(2)(d), Article 323B(3)(d) and section 28 are unconstitutional so far as they exclude it; tribunals are courts of first instance and a Division Bench of the High Court supervises; no direct appeal to the Supreme Court. Madras Bar Association 2021 continues the story on independence.

Test yourself

1. What is the practical position of a litigant before a tribunal today? He must go to the tribunal first, then to a Division Bench of the High Court under Articles 226 and 227, and only then may he seek special leave.

2. Why was Sampath Kumar's compromise abandoned? Because ten years of working showed that the tribunals were not effective and efficacious substitutes for the High Courts.

3. What exactly was struck down in L. Chandra Kumar? Article 323A(2)(d), Article 323B(3)(d) 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.

Natural justice is constitutional. After Maneka Gandhi v. Union of India, AIR 1978 SC 597, procedure under Article 21 must be right, just and fair.

Proportionality arrived early for fundamental rights. The reasonable restrictions test in Article 19(2) to (6) is a proportionality test in all but name, and Modern Dental College and Research Centre v. State of Madhya Pradesh, decided on 2 May 2016, states the four steps expressly.

How to use the map in an answer

State the three heads. Give the sub-grounds under each. Take two or three and work them with a case. Then apply them to the facts if the question is a problem. An answer that lists fourteen grounds and works none of them scores badly; an answer that works three and shows it knows there are more scores well.

A worked example

A State refuses to renew a private bus operator's permit. The file shows that the decision was taken by the Transport Minister although the Act names the Regional Transport Authority; that no hearing was given; that a note records the Minister's wish to help a State corporation; and that the reason communicated is a single sentence saying the renewal is not in the public interest.

Illegality: the decision was made by an authority the Act did not empower, which is want of jurisdiction, and it was made under dictation so far as the Authority acted on the Minister's wish. Abuse of discretion: the purpose was to favour a competitor, which is improper purpose. Procedural impropriety: no hearing, and no adequate reasons on the authority of S.N. Mukherjee v. Union of India, AIR 1990 SC 1984. Irrationality: on those facts the decision is also arbitrary under Article 14 on Royappa. Four heads from one file, which is how a good answer is built.

What this does NOT mean

It does not mean the heads are watertight. They overlap constantly; a failure to consider a relevant matter is illegality and can also be irrationality.

It does not mean a ground must be pleaded by its name. But an answer, unlike a petition, is marked on the naming.

It does not mean there are no other grounds. Legitimate expectation, promissory estoppel and the duty to act fairly in contract are all doing work at the edges.

Quick revision

Three heads from the GCHQ case: illegality, procedural impropriety and irrationality, with proportionality added. Illegality covers jurisdiction, substantive and procedural ultra vires, the seven forms of abuse of discretion, error of law and violation of fundamental rights. Procedural impropriety covers bias, hearing, legitimate expectation and mandatory procedure. Irrationality covers Wednesbury, arbitrariness under Article 14, proportionality and want of reasons. The Indian additions are Article 14 arbitrariness, constitutionalised natural justice, and an early proportionality test for fundamental rights.

Test yourself

1. Name Lord Diplock's three heads. Illegality, irrationality and procedural impropriety, with proportionality suggested as a possible fourth.

2. Name the seven forms of abuse of discretion. Mala fides, improper purpose, irrelevant considerations, non-application of mind, acting under dictation, fettering the discretion by a self-imposed rule, and unlawful sub-delegation.

3. What does Article 14 add to the English list? It makes arbitrariness itself unconstitutional after Royappa, so an arbitrary decision is void without needing to satisfy the very high Wednesbury threshold.

Why it matters here. Three separate things. It gave the subject its vocabulary. It held that the source of the power is irrelevant to reviewability. And it decided a legitimate expectation case, which is why it belongs to Module III as well.

The three heads unpacked

Illegality. The decision-maker must correctly understand the law regulating his power and give effect to it. This covers everything in group A of [The Grounds of Judicial Review, Classified]: jurisdiction, ultra vires, the abuses of discretion, error of law.

Irrationality. Wednesbury unreasonableness, at the high threshold Lord Diplock stated. Note that he treated irrationality as standing on its own feet as a ground and not as evidence of some unidentified error of law.

Procedural impropriety. Wider than natural justice, because it includes breach of an express procedural rule. That is why a failure to consult where a statute requires consultation is a ground even though no individual has been denied a hearing.

What Indian law does with the classification

It uses it, and adds to it.

Tata Cellular adopts it. Tata Cellular v. Union of India, AIR 1996 SC 11, sets out the same three heads as the grounds on which a government contracting decision may be reviewed.

Article 14 sits alongside irrationality. Arbitrariness under E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, is a lower threshold than Wednesbury and does much of the same work.

Proportionality has arrived. What Lord Diplock predicted has happened, and Modern Dental College and Research Centre v. State of Madhya Pradesh, decided on 2 May 2016, sets out its four steps.

A worked example

A university, acting under a regulation which requires it to consult the academic council before changing a syllabus, changes a syllabus by an order of the Vice-Chancellor without consulting anybody, and applies the change to students already halfway through the course.

Illegality: if the regulation confers the power on the academic council and not on the Vice-Chancellor, the order is ultra vires. Procedural impropriety: even if he had the power, the failure to consult is a breach of an express procedural rule, and Lord Diplock's third head covers it although no individual was denied a hearing. Irrationality: applying a new syllabus to students who have completed half the old one may be so unreasonable that no sensible body would do it, and in India it is more easily attacked as arbitrary under Article 14.

What this does NOT mean

It does not mean the three heads are exhaustive. Lord Diplock said so himself.

It does not mean irrationality is easy to establish. The formula is deliberately extreme.

It does not mean national security is a no-go area. The Court held that whether national security requires a course is for the Government, but that the Government must produce evidence that the decision was in fact based on it.

Quick revision

The GCHQ case, [1985] AC 374, decided 22 November 1984. Trade union membership at Cheltenham withdrawn by an oral instruction under a prerogative Order in Council, with no consultation. Held: a prerogative power is reviewable; the grounds are illegality, irrationality and procedural impropriety, with proportionality a likely fourth; the unions had a legitimate expectation of consultation, but national security displaced it and is for the Government to judge on evidence. Indian law adopts the three heads in Tata Cellular and adds Article 14 arbitrariness and proportionality.

Test yourself

1. Define irrationality in Lord Diplock's words. 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 to be decided could have arrived at it.

2. Why did he prefer procedural impropriety to breach of natural justice? Because it covers also the failure to observe express procedural rules in the instrument conferring jurisdiction, even where no denial of natural justice is involved.

3. Why is the case important beyond the classification? Because it held that a power derived from the prerogative rather than a statute is not for that reason immune from review, and because it decided a legitimate expectation point.

The case MU expects

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. A rule made under the general rule-making power in section 26, which allowed the State Government to make rules for carrying out the purposes of the Act, 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.

Why it matters here. It is the cleanest modern statement of the doctrine applied to delegated legislation, and it is short enough to quote.

The theoretical criticism, which an LL.M. answer should mention

The wide version of the doctrine has been criticised as a fiction. When a court strikes down a decision for unreasonableness, it is not really finding that Parliament impliedly forbade unreasonable decisions; it is applying a judge-made standard of good administration. The competing explanation is that judicial review rests on the common law and on the constitution rather than on the implied intention of the legislature.

In India the criticism has less bite, because judicial review does not need to be justified by implication: Articles 13, 32, 226 and 246 supply it expressly. So an Indian court can strike down a rule for arbitrariness under Article 14 without pretending that the parent Act forbade arbitrariness.

A worked example

A municipal Act empowers the commissioner to make bye-laws regulating the hours during which shops may remain open. He makes a bye-law fixing the hours, and a second bye-law prescribing that no shop shall employ a person below eighteen. He then fixes hours for a particular market without the consultation with the market committee which the Act requires.

The first bye-law is intra vires. The second is substantively ultra vires: employment of children is not the regulation of hours, and the power to make rules for a purpose does not carry a power to legislate on a different subject, which is Kunj Behari. The third is procedurally ultra vires if the consultation requirement is mandatory.

Distinctions that carry marks

What ultra vires is NOT

It is not confined to delegated legislation. It applies to every administrative act.

It is not the same as illegality in the narrow sense. On the wide view it includes irrationality and abuse of discretion.

It does not require bad faith. An authority acting honestly and outside its powers is acting ultra vires.

It is not a complete explanation of judicial review, which is the theoretical criticism above.

Quick revision

Beyond the powers. A statutory authority has only what the statute gives, expressly or by necessary implication, so anything beyond is void. Two branches: substantive, where the act itself is outside the power, and procedural, where a mandatory condition was not observed. The doctrine was extended to cover abuse of discretion, which is why it is called the foundation of judicial review. Kunj Behari Lal Butail is the modern authority: a general rule-making power cannot travel beyond the Act or deal with a subject the Act did not. The theoretical criticism is that the wide version is a fiction, and in India it matters less because review is expressly constitutional.

Test yourself

1. Why does a statutory authority have only the powers the statute gives? Because it exists only by force of the statute and has no capacity outside it, unlike a natural person who may do anything the law does not forbid.

2. State the rule in Kunj Behari Lal Butail. A general power to make rules for carrying out the purposes of an Act does not authorise a rule that travels beyond the Act, is inconsistent with it, or deals with a subject the Act itself did not deal with.

3. What is the theoretical objection to the wide doctrine? That striking a decision down for unreasonableness is not really an application of the legislature's implied intention but of a judge-made standard, so the true basis of review is the common law and the constitution rather than ultra vires.

The form of an order or the number of copies to be filed, where nobody is prejudiced.

A worked example

A State Act requires that before declaring an area a slum, the competent authority shall publish a draft declaration, invite objections within thirty days, hear the objectors, and forward the file to the Government within sixty days of the hearing.

The authority publishes the draft, invites objections in fifteen days instead of thirty, hears the objectors, and forwards the file after ninety days.

The shortened objection period is a breach of a mandatory requirement: the period exists for the protection of the persons affected and cutting it in half prejudices them, so the declaration is procedurally ultra vires. The delay in forwarding is directory: it is an internal timetable, the statute prescribes no consequence, and nobody is prejudiced. That contrast, in one set of facts, is the whole topic.

Distinctions that carry marks

What this does NOT mean

It does not mean substantive defects can never be cured. They cannot be cured by redoing the act, but the legislature can validate them retrospectively by an Act.

It does not mean a directory requirement may be ignored. An authority which ignores it acts unlawfully even though the act is not void, and persistent disregard can itself be reviewed.

It does not mean the labels decide themselves. Shall has been read as directory and may as mandatory, and the court looks at the purpose.

Quick revision

Substantive ultra vires: the subject matter is outside the power, or the act exceeds a statutory limit, or conflicts with the parent Act, or with the Constitution. Procedural ultra vires: a prescribed condition was not observed and the condition is mandatory. Mandatory or directory is decided by the words, the purpose of the requirement, the consequences of invalidity, and whether the statute prescribes a consequence. Notice, consultation and publication are usually mandatory; internal timetables and forms usually directory. Harla is the authority on publication.

Test yourself

1. Give the practical difference between the two branches. A substantively ultra vires act can never be validly done in that form; a procedurally ultra vires act can be done again after the procedure is followed.

2. Name the four indications used to decide whether a requirement is mandatory. The words used, the purpose of the requirement, the consequences of holding it mandatory, and whether the statute itself prescribes a consequence for non-compliance.

3. Why is publication almost always mandatory? Because a law which nobody can know is not a law at all: Harla.

Control at the stage of exercise. The larger part of the subject, and the whole of the rest of Module II.

The vocabulary

Discretion. A power to choose between lawful courses.

Subjective satisfaction. A statutory formula which makes the authority's own opinion the condition of the power, such as if the Government is satisfied or if the officer has reason to believe. It narrows but does not remove review: [Liversidge v Anderson and Subjective Satisfaction] and [Subjective Satisfaction in India after Barium Chemicals].

Objective condition. A formula which makes a fact the condition, so that the fact must exist.

Guidelines. Standards, whether in the statute or laid down by the authority itself, by which the discretion is to be exercised. They cure a want of guidance in the Act and they also bind the authority, because departing from them without reason is arbitrary.

A worked example

A section provides that the Collector may, if he is satisfied that it is necessary in the public interest, prohibit the holding of a fair in any place within the district.

The discretion is real: the Collector chooses. It is subjective in form, so the court will not ask whether it was necessary; but it will ask whether there was material on which the satisfaction could be reached, whether the material was relevant, whether the Collector applied his own mind rather than acting on instructions, and whether the reason given is the real reason. If the section had said the Collector may prohibit a fair, with nothing more, a court might hold the power to be unguided and strike the section down under Article 14 unless a policy could be found elsewhere in the Act.

What this does NOT mean

It does not mean the court substitutes its own view of the public interest. It asks whether the choice was lawfully made.

It does not mean subjective language ousts review. It changes what the court asks, not whether it asks.

It does not mean guidelines can be departed from at will. A published guideline creates a legitimate expectation and departing from it needs a reason.

Quick revision

Discretion is the power to choose. It is inevitable because a legislature cannot foresee every case, because individual justice requires it, because circumstances change and because expertise lies in the administration. It is dangerous because it can be exercised for the wrong reason, unequally, by the wrong person or on no material. Control operates at two stages: conferment, where an unguided power may be struck down under Article 14, as in Nergesh Meerza, and exercise, which is the rest of Module II. Subjective satisfaction narrows review but does not remove it.

Test yourself

1. Give two reasons why discretion cannot be abolished. The legislature cannot foresee every case, and individual justice requires that like cases be treated alike and unlike cases differently.

2. What is control at the stage of conferment? Testing the validity of the statute or rule which confers the discretion, and striking it down if the power is unguided and uncanalised, which offends Article 14.

3. Does subjective satisfaction exclude judicial review? No. The court does not ask whether the satisfaction was correct, but it does ask whether there was material, whether it was relevant, and whether the mind was applied.

Is the result defensible? Wednesbury unreasonableness, arbitrariness under Article 14, and proportionality where a fundamental right or a punishment is in issue.

Were reasons given? S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.

The critical analysis MU asks for

The case for a wide review. A discretion is a trust, not a gift. An official exercising public power spends public authority and affects private lives, and if his reasons cannot be examined the power is arbitrary in fact even if lawful in form. Liversidge is the standing demonstration of what happens when a court declines: the detention was unreviewable, and Lord Atkin's dissent is now regarded as the law.

The case for restraint. The official is accountable politically and has expertise the court lacks. A court that reviews too intensely substitutes its own choice, which is what Tata Cellular v. Union of India, AIR 1996 SC 11, and Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, warn against.

Where the balance now sits. The court reviews the process fully and the merits hardly at all, except where a fundamental right is affected, when proportionality allows a closer look at the substance. That is the modern compromise, and it is defensible because it protects both the citizen's right to a lawful decision and the administration's right to make it.

A worked example

A District Magistrate, acting under a statute empowering him to prohibit an assembly if he is satisfied that it is likely to cause a disturbance of public order, prohibits a meeting of an association whose earlier meetings had passed without incident. The file contains a police report about a different association and a note from a local politician.

There was a power. The condition is a subjective satisfaction, so the court will not ask whether a disturbance was likely, but it will ask what material there was: a report about a different association is not material about this one, so the case is close to S.R. Venkataraman. The note from the politician raises non-application of mind and acting under dictation. And on the modern view the order engages Article 19(1)(b), so proportionality applies and a blanket prohibition where conditions could have been imposed is disproportionate.

What this does NOT mean

It does not mean Liversidge is bad law in India. It was never Indian law; Indian courts followed the dissent through Barium Chemicals and Rohtas Industries.

It does not mean the court decides how the discretion should be exercised. Except in the narrow class of Comptroller and Auditor General of India v. K.S. Jagannathan, AIR 1987 SC 537.

It does not mean subjective language is meaningless. It shifts the enquiry from correctness to the existence and relevance of material.

Quick revision

MU pairs Liversidge with Padfield because they are the two poles. Liversidge: reasonable cause to believe read as honest belief, no review, Lord Atkin dissenting. Padfield: no unfettered discretion, it must promote the policy and objects of the Act, mandamus to consider according to law. Today a court asks about power, conditions, application of mind, purpose, considerations, result and reasons. The critical balance is between the trust theory of discretion and the restraint required by expertise and political accountability, and the compromise is full process review with merits review only through proportionality.

Test yourself

1. Why did MU pair Liversidge with Padfield? Because they are the two extremes: the first treats a subjective formula as excluding review, the second holds that no statutory discretion is unfettered.

2. Name three things a court examines in a discretion case. Whether the power existed, whether there was relevant material for the satisfaction, and whether the power was used for the purpose for which it was given.

3. Where does the merits review still happen? Where a fundamental right or a punishment is in issue, through proportionality, and at the extreme through Wednesbury unreasonableness and Article 14 arbitrariness.

Why it matters here. MU names the case with its neutral citation and pairs it with Padfield. It is the standing illustration of what happens when a court treats a subjective formula as ousting review, and Lord Atkin's dissent supplies the language every later judgment on the subject has borrowed.

Why the majority decided as it did

The war. The decision was given in November 1941, and the reasoning is soaked in the emergency.

The subject matter. National security, where the executive has information the court does not.

The drafting. The regulation was made by the executive under a wide enabling Act, and the majority took the view that Parliament had intended the Secretary of State to be the judge.

None of the three is a good reason of construction, which is Lord Atkin's point: the question was what the words mean, and the words are ordinary English.

What happened afterwards

Lord Atkin's dissent became the law. English courts later said so expressly, and the case is now cited for the dissent.

India never followed the majority. Indian courts read a subjective satisfaction as importing an objective element from the beginning, which is worked in [Subjective Satisfaction in India after Barium Chemicals].

The lesson survives the war. Every statute that says if the authority is satisfied raises the same question, and the answer courts now give is Lord Atkin's.

A worked example

A State Act provides that if the Commissioner has reasonable grounds to believe that a trader is evading tax, he may seize his stock. The Commissioner seizes a trader's stock and, when challenged, files an affidavit saying only that he had reasonable grounds and that they cannot be disclosed.

On the Liversidge majority the affidavit would be the end of the case. On Lord Atkin's dissent, and on Indian law, it is not. The words reasonable grounds are objective in form; the existence of grounds is a fact the court may examine; the Commissioner must disclose the material to the court even if not to the trader, subject to a claim of privilege on stated grounds; and if the material discloses nothing that could support the belief, the seizure is bad.

What this does NOT mean

It does not mean an emergency makes no difference. It may affect the intensity of review and the willingness to require disclosure. It does not turn an objective condition into a subjective one.

It does not mean every subjective formula is objective. A statute may make the authority's opinion the condition, and then the court asks about material and relevance rather than about correctness.

It does not mean the case is only of historical interest. It is the reason Indian courts state the rule about subjective satisfaction in the form they do.

Quick revision

Regulation 18B, detention on the Secretary of State's reasonable cause to believe. Majority: honest belief is enough, the court cannot examine the grounds. Lord Atkin dissenting: the words have one meaning, judges must not be more executive minded than the executive, amid the clash of arms the laws are not silent, and the majority's method is Humpty Dumpty's. The dissent is now treated as correct, and India never adopted the majority.

Test yourself

1. What did the majority hold the words to mean? That the condition was the Secretary of State's own honest belief, so the grounds were not examinable by the court.

2. Quote two propositions from Lord Atkin's dissent. That in this country, amid the clash of arms, the laws are not silent and speak the same language in war as in peace; and that judges must not, on a question of construction touching liberty, show themselves more executive minded than the executive.

3. What is the modern status of the decision? The dissent is regarded as correct; India never followed the majority and reads a subjective satisfaction as importing an objective element.

Why it matters here. Barium Chemicals produced more than one line of reasoning; Rohtas settled the question by adopting the narrower view, so it is the case to cite for the proposition.

The rule in four propositions

1. The formation of the opinion is for the authority. The court does not ask whether it would have formed the same opinion.
2. The existence of the circumstances is for the court. They are a condition precedent to the power.
3. The circumstances must be capable of rationally supporting the opinion. Material that has no bearing on the statutory ground is no material at all.
4. The authority must show the material if challenged. A bare recital of the statutory formula is not enough, subject to a properly made claim of privilege.

Where the rule bites hardest

Preventive detention. The satisfaction of the detaining authority is subjective, yet non-existent grounds, stale grounds and irrelevant grounds all destroy an order, which is worked in [Habeas Corpus in Practice: Preventive Detention and ADM Jabalpur].

Investigations and searches. Reason to believe formulas in tax and company law.

Supersession of a body. If the Government is satisfied that a municipal council has defaulted.

Emergency takeovers. Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, is a subjective satisfaction case as well as a natural justice case.

A worked example

A section allows the Registrar of Co-operative Societies to supersede a committee if he is satisfied that it is persistently in default. He supersedes a committee, and the order recites persistent default. The file contains one audit note about a delay in filing accounts two years ago.

The opinion is his to form; the court will not weigh persistence. But a single delay two years old cannot rationally support a finding of persistent default, which is Barium Chemicals and Rohtas; and the gap of two years raises the question of stale material. The order will be quashed for want of material capable of supporting the satisfaction.

What this does NOT mean

It does not mean the court substitutes its own satisfaction. It asks about material, not about correctness.

It does not mean the authority must disclose everything to the affected person. Disclosure to the court may be enough where a claim of privilege is properly made.

It does not mean subjective and objective formulas are the same. Where the statute states an objective condition, the fact itself must exist; where it states a satisfaction, material capable of supporting it must exist.

Quick revision

The formation of the opinion is subjective; the existence of the circumstances is a condition precedent and is justiciable; the material must be capable of rationally supporting the opinion; and a bare recital of the formula is not enough. Barium Chemicals states it, Rohtas Industries settles it by adopting the narrower view, and the rule is applied in preventive detention, investigations, supersession and takeovers.

Test yourself

1. What exactly can the court examine where a statute uses "in the opinion of"? Whether the circumstances on which the opinion rests exist, and whether they are capable of rationally supporting it; not whether the opinion is correct.

2. Why is Rohtas Industries cited rather than Barium Chemicals alone? Because Barium Chemicals produced more than one line of reasoning, and Rohtas adopted the narrower view, settling the law.

3. Is a recital of the statutory formula enough? No. The authority must be able to show material, subject to a properly made claim of privilege, and an order resting on nothing is quashed.

Why it matters here. It is the case that killed the phrase unfettered discretion in public law, and MU names it with its neutral citation.

The four propositions to take away

One, no discretion is unfettered. However wide the words, the power has a purpose.

Two, the purpose is found by construing the Act. Not by asking the Minister what he thought it was.

Three, construction is for the court. This is the sentence that makes the whole doctrine work, because it moves the decisive question from the executive to the judiciary.

Four, the remedy is to compel a lawful consideration, not a particular result. The Minister was told to consider according to law, not to refer.

The reasons point

Lord Reid dealt with the argument that a Minister need give no reasons. His position was that a Minister is not bound to give reasons, but if he gives none where his decision is unexplainable on any lawful ground, the court may infer that he had no good reason; and if he gives reasons which are bad, the decision falls. That is the reasoning which later produced a general duty to give reasons in Indian law: S.N. Mukherjee v. Union of India, AIR 1990 SC 1984.

The Indian afterlife

Indian courts had reached the same position by a different route, through the doctrines of improper purpose and irrelevant considerations, and through Article 14. Padfield is nevertheless cited constantly, because it states the proposition better than any Indian case, and because MU's syllabus is comparative.

The nearest Indian statement is in the arbitrariness line: E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, holds that equality is antithetic to arbitrariness, which does the same work as Padfield in a constitutional form.

A worked example

A statute allows a State Government to refer a dispute to an industrial tribunal if it is of opinion that an industrial dispute exists or is apprehended. A union raises a dispute about the dismissal of forty workmen. The Government declines to refer, writing that the dispute is old and that a reference would be inconvenient during an election year.

Padfield answers it. The discretion is not unfettered; the policy and objects of an Act creating machinery for the settlement of industrial disputes are the settlement of disputes; declining because a reference would be politically inconvenient thwarts the object, and age alone is not a lawful reason where the dispute is live. The remedy is a mandamus to consider the request according to law, not a direction to refer.

What this does NOT mean

It does not mean the court decides the merits. The Minister may still refuse, for a lawful reason.

It does not mean silence is always fatal. The rule is that unexplained silence may permit an inference where no lawful reason is apparent.

It does not mean every statutory purpose is easy to find. Where an Act has several objects, the discretion may lawfully be exercised to promote any of them.

Quick revision

Milk Marketing Scheme, regional price differentials, section 19(3)(b), the Minister's refusal to refer a complaint on the footing that his discretion was unfettered. Held: the discretion must be used to promote the policy and objects of the Act; those are found by construing the Act as a whole; construction is a matter of law for the court; a Minister who thwarts them may be compelled by mandamus to consider according to law. On reasons: none need be given, but unexplained silence may permit an adverse inference, and bad reasons destroy the decision.

Test yourself

1. State Lord Reid's proposition in his own terms. That Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, which are determined by construing the Act as a whole, construction being always a matter of law for the court.

2. What order did the House make? Mandamus requiring the Minister to consider the complaint according to law, with the case remitted; it did not order him to refer the complaint.

3. What is the position on reasons after Padfield? A Minister need not give reasons, but if his decision is unexplainable on any lawful ground his silence may permit the inference that he had none, and reasons which are bad will destroy the decision.

The relationship with the other grounds

Mala fides overlaps almost everything. An order made for an improper purpose is usually also mala fide; an order made on irrelevant considerations is usually also an abuse of power. The practical advice for an answer is to plead the narrower ground as well, because a court which will not find dishonesty may readily find an improper purpose.

Proving it

Particulars, not assertions. Dates, names, documents.

The person alleged to be malicious must be impleaded.

Call for the file. A writ court may direct the production of the record, and in most successful cases the file decides it.

Look for the sequence. A transfer immediately after a complaint, a cancellation immediately after a refusal to pay, a sudden change of criteria after the applications are in.

A worked example

A municipal officer refuses to renew a hotel licence one week after the hotelier gives evidence against a corporator in a criminal case. The order recites that the premises are unhygienic. The inspection report on the file is dated after the order, and the previous three inspections found no defect.

Malice in fact is arguable but hard: the hotelier must implead the officer and show a connection with the corporator. Malice in law is straightforward on S.R. Venkataraman: there was no material before the officer when he made the order, since the report post-dates it, so the order is an abuse of power whatever anybody's motive was. The second route wins the case; the first only makes it more colourful.

Distinctions that carry marks

What this does NOT mean

It does not mean an unfair result proves mala fides. The ground requires either a motive or the absence of any lawful basis.

It does not mean a court will readily infer bad faith. It will not, and a reckless allegation attracts costs.

It does not mean malice in law is a lesser ground. It is the ground that succeeds.

Quick revision

Two kinds. Malice in fact: a dishonest or improper motive, requiring particulars and the impleading of the officer, and rarely proved. Malice in law: a wrongful act done intentionally without just cause or excuse, inferred from the absence of any material or from considerations foreign to the power, which is S.R. Venkataraman. The ground overlaps improper purpose and irrelevant considerations, and a good answer pleads all three.

Test yourself

1. Define malice in law. 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.

2. Why did S.R. Venkataraman succeed although no bad motive was proved? Because there was no material at all on the record to support the order of premature retirement, which makes it an abuse of power irrespective of motive.

3. What two procedural steps does an allegation of malice in fact require? Full particulars rather than a general assertion, and the impleading of the person alleged to have acted maliciously so that he may answer.

A worked example

A municipal Act empowers a commissioner to close a road temporarily for repairs. He closes the road in front of a market which competes with a market the corporation owns, and the file shows a note from the standing committee about falling revenue at the corporation's own market and no engineering report at all.

Improper purpose is made out. The power exists for repairs and was used to divert custom. Nobody needs to be shown to be dishonest, and the commissioner may honestly have thought he was helping the corporation's finances. It is also a colourable exercise, because the corporation cannot lawfully close a competitor's approach road and has done so under cover of a repair power. And it is malice in law on S.R. Venkataraman, because there was no engineering material at all.

Distinctions that carry marks

What this does NOT mean

It does not mean an authority may pursue only one purpose. An Act with several objects permits action for any of them.

It does not mean a good result cures a bad purpose. The order falls even if the same order could lawfully have been made for a proper reason, unless the proper purpose was the dominant one.

It does not apply to legislation in the same way. A legislature's motive is irrelevant if it has the competence, which is the Gullapalli point.

Quick revision

Improper purpose is the use of a power for an object other than the one for which it was given. The purpose is found from the Act on Padfield's method, from the file, and from the effect. Where purposes are mixed, the dominant purpose test decides. Colourable exercise is a device: what cannot be done directly cannot be done indirectly, and Gullapalli separates the position for legislation, where competence decides and motive is irrelevant. The ground overlaps mala fides and irrelevant considerations, and needs no proof of dishonesty.

Test yourself

1. Why is improper purpose more useful to a petitioner than mala fides? Because it requires no proof of a bad motive; the question is what object was pursued, which can be shown from the statute, the file and the effect of the order.

2. What is the dominant purpose test? Where an order is made for both a proper and an improper purpose, it falls if the improper purpose was dominant or if the order would not have been made but for it.

3. Why is a legislature's motive irrelevant? Because a legislative power is plenary within its field: if the legislature has competence, the court asks what the law does and not why it was passed, which is the reasoning in Gullapalli on colourable legislation.

A worked example

A section allows a State to grant a mining lease, having regard to the applicant's experience, his financial capacity, the development of the mineral concerned and the interest of the State revenue. A lease is granted to a company whose application was late, and the file records that the Minister preferred it because its promoter had promised to fund a college in his constituency, and that the applicant with twenty years of experience was not considered because his file was misplaced.

The promise of a college is an irrelevant consideration: it is nothing to do with any of the four factors. The failure to consider the experienced applicant is a failure to take account of a relevant matter, both because experience is a listed factor and because the section requires the claims of applicants to be compared. Either would be enough; together they make the grant plainly bad.

Distinctions that carry marks

What this does NOT mean

It does not mean the court re-weighs the factors. Relevance is for the court; weight is for the authority.

It does not mean an authority may consider nothing but the listed factors. Where the list is not exhaustive it may consider other matters consistent with the object of the Act.

It does not mean a single irrelevant factor always destroys the order. Where the decision would plainly have been the same without it, a court may decline relief; but where the factor is likely to have influenced the result, the order falls.

Quick revision

An authority must direct itself properly in law, consider what it is bound to consider and exclude what is irrelevant, which is Lord Greene in Wednesbury. Three forms: taking the irrelevant into account, ignoring the relevant, and acting on nothing at all, the last being malice in law under S.R. Venkataraman. Relevance is decided by the court from the express and implied factors in the Act; weight is for the authority.

Test yourself

1. Who decides what is relevant, and who decides how much it matters? The court decides relevance by construing the Act; the authority decides weight, subject only to irrationality.

2. What happens where the authority acts on no material at all? The order is an abuse of power and is bad, without proof of any bad motive: S.R. Venkataraman.

3. Does a single irrelevant consideration always vitiate the decision? Not necessarily. It does where it is likely to have influenced the result; where the decision would plainly have been the same without it, the court may decline relief.

A worked example

A Collector issues thirty-two orders on one day under a preventive law, each in identical terms, each reciting that he is satisfied that the person is likely to act in a manner prejudicial to public order. Two of the thirty-two persons were in jail on the date of the order, a fact stated in the police report that accompanied each file.

Non-application of mind is established twice over. The identical terms in thirty-two cases show that no individual judgment was brought to bear. And detaining a man already in custody, without adverting to that fact and to why detention is still necessary, shows that the report was not read. The orders will be quashed without any need to allege malice.

Distinctions that carry marks

What this does NOT mean

It does not mean a short order is bad. Brevity is not the vice; absence of thought is.

It does not mean a common form is always bad. A common form which is filled in with the particulars of the individual case is unobjectionable.

It does not mean the court examines the quality of the reasoning. It asks whether there was any, not whether it was good.

Quick revision

The authority must bring its own judgment to bear. Shown by stereotyped orders, bare recitals of the statutory formula, borrowed satisfaction, orders that predate the material, failure to deal with the reply, and impossible timetables. It is closely linked to want of reasons, which is S.N. Mukherjee, and to want of material, which is S.R. Venkataraman. Canara Bank v. V.K. Awasthy shows both the ground and the prejudice test.

Test yourself

1. Give three indications of non-application of mind. Identical stereotyped orders in many cases, an order that predates the material relied on, and a final order which does not deal with the reply to the show cause notice.

2. Is a brief order necessarily bad? No. Brevity is not the defect; the absence of any judgment is, and a short order which shows that the individual case was considered is good.

3. How is the ground connected to reasons? An unreasoned order does not prove the defect but makes it impossible to disprove, and S.N. Mukherjee requires reasons clear and explicit enough to show that the points in controversy were considered.

The reasoning is the same as in dictation: the statute vested the function in one mind, and two minds performed it.

A worked example

A Regional Transport Authority is empowered to grant stage carriage permits. The Transport Commissioner circulates an instruction that no new permit is to be granted on any route on which a State corporation operates. The Authority refuses an application, and the order says that the application is rejected in view of the Commissioner's instruction.

The order is void. The statute gave the discretion to the Authority; the Commissioner's instruction removed it; and the order records on its face that the Authority did not apply its own mind but obeyed. If instead the instruction had been expressed as a policy, and the Authority had considered whether this application was an exceptional case and given reasons, the order would stand.

Distinctions that carry marks

What this does NOT mean

It does not mean a subordinate authority is independent of government policy. It must apply policy; it must not surrender the decision.

It does not mean an order is saved by not mentioning the instruction. The file decides, and a court will call for it.

It does not mean the person who dictated is liable. The consequence is that the order is void, not that anybody is punished.

Quick revision

The named authority must decide. Dictation takes three forms: an express instruction obeyed, a general instruction that leaves no discretion, and adopting another body's conclusion unexamined. Lawful: advice freely rejectable, a policy applied with an open mind, and approval required by the Act. The line is whether the authority treated the outside view as binding. Gullapalli supplies the reasoning: where the statute vests the function in one authority, divided responsibility vitiates it.

Test yourself

1. State the line between lawful consultation and unlawful dictation. Advice which the authority is free to accept or reject is lawful; an instruction which it treats as binding, so that it does not decide, is not.

2. Why is an order under dictation void even if it is sensible? Because the vice is that the authority the statute named did not decide, and the merits of the order are irrelevant to that.

3. How does Gullapalli support the ground? It holds that where a statute requires a hearing before a decision, the authority that hears must decide, and divided responsibility vitiates the exercise, which is the same principle applied to a different division of function.

So in India the two errors are symmetrical: applying a policy rigidly is a fetter, and abandoning a published policy without reason is a breach of legitimate expectation. The authority has to steer between them, and the steering is done by giving reasons.

A worked example

A State scheme provides for the grant of compassionate appointment to a dependant of a government servant who dies in harness, and a circular says that no application made more than one year after the death shall be entertained. A widow applies fourteen months after the death, explaining that she spent the first year in hospital after an accident, and her application is rejected in one line citing the circular.

The circular is a lawful policy: compassionate appointment is meant to meet immediate distress, so a time limit is consistent with the object. The rejection is unlawful, because the authority applied the policy mechanically to a case which on its face was exceptional and did not consider whether to relax it. The order will be set aside with a direction to consider the explanation, which is the classic remedy: not a direction to appoint, but a direction to decide with an open mind.

Distinctions that carry marks

What this does NOT mean

It does not mean every applicant is entitled to an exception. He is entitled to have the request for one considered.

It does not mean the policy must be published. But an unpublished policy applied to the public is itself objectionable, because the citizen cannot address it.

It does not mean the authority may change its policy freely. It may, in the public interest and prospectively, but it must give reasons, which is Brahmputra Metallics.

Quick revision

A discretion must be kept. A policy is lawful if it is consistent with the statute, is not applied mechanically, and yields to an exceptional case considered on its merits. Fettering also occurs by contract, by an undertaking, and by delegation. In India rigid application is arbitrary under Article 14, and departing from a published policy without reason breaches a legitimate expectation, which is Brahmputra Metallics; the way between the two is to give reasons.

Test yourself

1. State the three conditions of a lawful policy. That it is consistent with the statute, that it is not applied mechanically, and that the authority remains willing to consider an exceptional case on its merits.

2. Can an authority bind itself by contract not to exercise a statutory power? No. Such a contract does not prevent the exercise of the power, because an authority cannot fetter a discretion the statute gave it.

3. What is the symmetrical error to fettering, in Indian law? Abandoning a published policy without reasonable justification, which breaches a legitimate expectation and is arbitrary under Article 14: Brahmputra Metallics.

The answer usually turns on the nature of the power: the wider the discretion and the more serious its consequences, the less readily a sub-delegation is implied.

A worked example

A municipal Act empowers the Commissioner to direct the demolition of an unauthorised structure after hearing the owner. The Commissioner issues a standing order authorising every Ward Officer to pass demolition orders. A Ward Officer hears an owner and orders demolition.

If the Act contains a general power to delegate, the standing order is valid provided it was made in the prescribed manner, and the demolition stands. If the Act does not, the standing order is void: the Commissioner cannot give away a discretion the legislature gave to him, and the demolition is a nullity. Notice that the owner was heard, and that it does not help: the vice is that the wrong person decided.

Distinctions that carry marks

What this does NOT mean

It does not mean an authority must do everything personally. Ministerial and preparatory acts may be done by others.

It does not mean a Government cannot act through officers. Articles 77 and 166 and the Rules of Business provide for exactly that.

It does not mean a valid delegation makes the delegate the master. The delegating authority remains responsible and may ordinarily revoke the delegation and act itself.

Quick revision

Delegatus non potest delegare. A discretion must be exercised by the authority the statute named, unless the Act permits delegation expressly or by necessary implication. Sub-delegation includes handing over the decision, signing another's decision, and separating the hearing from the decision, which is the Gullapalli problem. It is lawful where the Act allows, where a Government acts through officers under Articles 77 and 166, where the function is ministerial, or where only the enquiry is delegated and the report is furnished, which is Karunakar. The vice is that the wrong person decided, so a hearing does not cure it.

Test yourself

1. State the maxim and its meaning. Delegatus non potest delegare: a person to whom a power has been delegated cannot delegate it further, so a statutory discretion must be exercised by the named authority.

2. Why can a Government act through its officers without offending the rule? Because a Government can act only through officers, and Articles 77 and 166 with the Rules of Business provide the machinery, so the delegation arises by necessary implication.

3. Does a hearing cure an unlawful sub-delegation? No. The defect is that the authority the statute chose did not decide, and no amount of procedural fairness before the wrong decision-maker cures it.

The substantive sense. Unreasonable as a ground in itself, where the decision is so absurd that no reasonable authority could have reached it. Lord Greene gave the example, from an earlier case, of a red-haired teacher dismissed because she had red hair.

Lord Diplock restated the second sense in Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374, as irrationality: a decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind could have arrived at it.

Why the threshold is so high

Because the alternative is that the court decides. If unreasonableness meant what the court thought unreasonable, every discretionary decision would be appealable to a judge, and the choice Parliament gave to the authority would move to the bench. Lord Greene said exactly that: it is not what the court considers unreasonable, which is a different thing altogether.

Where India stands

Article 14 lowers the bar. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, makes arbitrariness itself unconstitutional. An Indian petitioner therefore rarely needs the Wednesbury threshold: he says the decision is arbitrary, which is a lower and constitutional standard.

Wednesbury survives for punishment. In service matters the courts still use Wednesbury when reviewing the quantum of a penalty, and it is only where the punishment is shockingly disproportionate that they interfere.

Proportionality has taken the fundamental rights field. [The Doctrine of Proportionality].

A worked example

A municipal committee grants a licence for a fair on the condition that no music of any kind shall be played at any hour, on any day, anywhere on the ground.

Is that Wednesbury unreasonable? Probably yes: the object of a condition is to prevent nuisance, and a total prohibition at all hours on all days, when a limit on hours and volume would achieve the object, is a condition no reasonable authority would impose. In India the same conclusion is reached faster: the condition is arbitrary under Article 14, and if the right to carry on trade is engaged it is disproportionate.

What this does NOT mean

It does not mean the court asks what it would have done. That is the error Lord Greene identified.

It does not mean unreasonableness is unusable. It succeeds where the decision is genuinely absurd, and it has done so in India regularly under the label of arbitrariness.

It does not mean the first half of Wednesbury is unimportant. The first half is where most cases are actually decided.

Quick revision

Wednesbury: a condition forbidding children under fifteen at Sunday cinema performances, upheld. Lord Greene: a discretion must be exercised on relevant considerations and with a proper self-direction in law; beyond that, a decision may be upset only if so unreasonable that no reasonable authority could ever have come to it, which requires something overwhelming, and it is not what the court considers unreasonable. Lord Diplock restated it as irrationality in the GCHQ case. In India Article 14 arbitrariness does most of the work, Wednesbury survives for punishment, and proportionality has taken the fundamental rights field.

Test yourself

1. State the Wednesbury test in one sentence. A decision may be set aside as unreasonable only if it is so unreasonable that no reasonable authority could ever have come to it.

2. What are the two senses of unreasonable that Lord Greene separated? The umbrella sense, covering misdirection in law and relevant and irrelevant considerations, and the substantive sense, in which the decision itself is absurd.

3. Why does an Indian petitioner usually plead Article 14 instead? Because Royappa makes arbitrariness itself unconstitutional, which is a lower threshold than the Wednesbury standard.

Why it matters here. It is the clearest Indian statement of the four steps, and it is recent enough to be the case an examiner is looking for.

Where the doctrine came from

Continental administrative law. German and French law developed it long before England, which is why Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374, described it as recognised in the administrative law of several fellow members of the European Economic Community and predicted its adoption.

Article 19 in India. The reasonable restrictions test in Article 19(2) to (6) has always required the court to ask whether a restriction is reasonable, which is proportionality without the name. Indian courts were therefore doing proportionality decades before the word became fashionable.

Proportionality and Wednesbury compared

A worked example

A district administration, worried about examination malpractice, orders a shutdown of mobile internet services in the whole district for four days.

Wednesbury would probably not help: the purpose is legitimate, there is material about malpractice, and it cannot be called absurd. Proportionality gives the answer. The purpose is legitimate and the measure is rationally connected. But it is not necessary: the examination lasts three hours and the shutdown lasts four days, and a shutdown confined to the examination centres and hours would achieve the same object with far less limitation. And on balancing, the social importance of preventing a district-wide loss of communication for four days outweighs the marginal gain. The order is disproportionate.

What this does NOT mean

It does not mean the court substitutes its own view of policy. The four steps are a structured enquiry into justification, not a re-decision.

It does not mean Wednesbury is dead. It survives for decisions that engage no right, and for the quantum of punishment.

It does not mean every restriction fails. Modern Dental College upheld the law, which is a useful reminder that the test is a method and not a verdict.

Quick revision

Four steps: legitimate purpose, rational connection, necessity in the sense of no less restrictive alternative, and balancing. Stated in that form in Modern Dental College. It came from continental law, was predicted for England by Lord Diplock in the GCHQ case, and has always been present in India through the reasonable restrictions test in Article 19. It is more intense than Wednesbury, shifts the burden of justification to the State once a limitation is shown, and does not authorise the court to substitute its own policy.

Test yourself

1. State the four steps. Proper purpose; rational connection between the measure and the purpose; necessity, that is no alternative measure achieving the same purpose with less limitation; and a proper relation between the importance of the purpose and the importance of preventing the limitation.

2. Why is proportionality more useful than Wednesbury where a right is engaged? Because Wednesbury asks only whether the decision is absurd, while proportionality asks whether the interference was necessary and balanced, which is the question a rights case raises.

3. Which Indian provision has always contained a proportionality test? The reasonable restrictions test in Article 19(2) to (6), which requires the court to ask whether a restriction on a freedom is reasonable.

Canara Bank v. V.K. Awasthy, AIR 2005 SC 2090, is useful in this connection because it restates the approach to procedural complaints in the same field: 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. The same instinct governs punishment: the court asks whether the result is defensible, not whether it is the result the court would have chosen.

The direction of travel

Proportionality is spreading. Three reasons.

Article 14. Since E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, arbitrariness is unconstitutional, and a measure grossly excessive for its object is easy to call arbitrary.

Delegated legislation. Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336, struck down a regulation for manifest arbitrariness where the liability imposed bore no relation to fault, which is proportionality reasoning under another name.

Rights-adjacent decisions. Licences, permits and closures now routinely engage Article 19(1)(g), which pulls them into primary review.

A worked example

A bank clerk with eighteen years of unblemished service is dismissed for a single instance of unauthorised absence of four days. Separately, a State bans the sale of a food product across the State on the strength of two adulteration complaints in one district.

The dismissal is tested by secondary review: the court will not fix the penalty, but a dismissal for a first offence of four days' absence after eighteen clean years is shockingly disproportionate, so the punishment is set aside and the matter goes back to the disciplinary authority. The ban is tested by primary review, because Article 19(1)(g) is engaged: the purpose is legitimate and there is a rational connection, but a State-wide ban on two complaints in one district is not necessary when a district-level ban and testing would achieve the object, so it fails at the third step.

Distinctions that carry marks

What this does NOT mean

It does not mean the court fixes punishments. It ordinarily remits.

It does not mean Wednesbury has been abolished. It is the standard outside the rights field.

It does not mean proportionality guarantees success. Modern Dental College upheld the law and Puttaswamy laid down a test rather than striking anything down.

Quick revision

Two levels. Primary review where a fundamental right is limited: the four steps of Modern Dental College and the three-fold requirement of legality, need and proportionality in Puttaswamy, with the burden on the State. Secondary review for punishment and ordinary choices: Wednesbury, with interference only where the penalty shocks the conscience, and the ordinary remedy being to set aside and remit. Proportionality is spreading through Article 14 arbitrariness, through delegated legislation as in Cellular Operators, and through Article 19(1)(g).

Test yourself

1. State Puttaswamy's three-fold requirement. Legality, which postulates the existence of law; need, defined in terms of a legitimate State aim; and proportionality, ensuring a rational nexus between the objects and the means adopted.

2. What does a court do with a shockingly disproportionate punishment? It ordinarily sets the punishment aside and remits the matter to the disciplinary authority, substituting a lesser penalty itself only rarely.

3. Why are the two levels different? Because a limitation of a fundamental right must be justified to the court under the Constitution, while the choice of penalty in a service matter engages no right and belongs to the disciplinary authority.

Article 21: life and liberty

After Maneka Gandhi v. Union of India, AIR 1978 SC 597, a procedure which deprives a person of life or personal liberty must be right, just and fair, and not arbitrary, fanciful or oppressive; and natural justice is implicit in Article 21. That single proposition converts almost every serious administrative decision affecting a person into a potential Article 21 case, because the right to livelihood has been read into life: Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, and D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259.

The qualification a good answer includes

Not every illegality is a violation of a fundamental right. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621, holds that 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 a petition under Article 226, not Article 32.

So the ground is available where the statute itself is bad, where the authority acts outside its jurisdiction, or where the act independently infringes a right. It is not a general appeal.

A worked example

A State issues an order that no person who has been a member of a particular association shall be granted a licence to run a private security agency, and separately cancels an existing licence without notice on the ground that the licensee's son has been charged with an offence.

The first order offends Article 14, because past membership of an association is not an intelligible differentia rationally related to fitness to run a security agency, and Article 19(1)(g), because the restriction is not reasonable. The second offends Article 21 as construed in Maneka Gandhi, because the procedure was not fair, and Article 14, because visiting a father with the consequences of his son's prosecution is arbitrary on Royappa. Neither order needs any other ground.

What this does NOT mean

It does not mean every administrative error is a constitutional violation. Ujjam Bai.

It does not mean the ground is available only under Article 32. It is available under Article 226 as well, which is wider.

It does not mean a fundamental right claim needs no facts. Arbitrariness has to be shown from the record, and a bare assertion of Article 14 gets nowhere.

Quick revision

Article 13(2) voids a law abridging Part III, and Article 13(3)(a) makes an order, rule, regulation or notification with the force of law into law, so administrative action is caught. Article 14 does most of the work through Royappa's arbitrariness doctrine, the classification test, and the rule against unguided discretion in Nergesh Meerza. Article 19 imports the reasonable restrictions test, with Narendra Kumar on total prohibition. Article 21 imports fairness after Maneka Gandhi and reaches livelihood through Olga Tellis and D.K. Yadav. Ujjam Bai is the limit: an error within jurisdiction under a valid law violates no right.

Test yourself

1. Which two clauses of Article 13 make this a ground against administrative action? Clause (2), which voids a law abridging Part III, and clause (3)(a), which defines law to include an order, rule, regulation or notification having the force of law.

2. State the Royappa proposition. Equality is antithetic to arbitrariness; equality and arbitrariness are sworn enemies; an arbitrary act is implicitly unequal and therefore violates Article 14.

3. What is the limit stated in Ujjam Bai? That an authority acting under a valid law and within jurisdiction does not violate a fundamental right merely by deciding a question of fact or construction wrongly.

How a wide power is saved

By guidelines in the Act. A preamble, an object clause, or a section stating the factors to be considered can supply the policy that the operative section omits.

By guidelines made by the authority. A published policy cures much of the vice, because it makes the exercise predictable and reviewable, and departing from it then needs reasons: State of Jharkhand v. Brahmputra Metallics Ltd., decided on 1 December 2020.

By reading down. A court may construe a wide power narrowly so as to save it, which is what Delhi Transport Corporation says should be attempted first.

By procedural safeguards. A requirement of notice, hearing and reasons reduces the risk of arbitrary use, which is why Module III and Module II are connected.

A worked example

A State rule provides that the Director of Education may, in his discretion, permit a private school to charge such fees as he may approve. He approves a higher fee for one school and refuses an identical request from another in the same locality with the same facilities, giving no reasons in either case.

The rule is vulnerable at the conferment stage: it lays down no standard at all, which is Nergesh Meerza. The exercise is vulnerable independently: identical cases decided differently without reasons is arbitrary under Royappa and unequal under Article 14. And the absence of reasons is itself a ground on S.N. Mukherjee v. Union of India, AIR 1990 SC 1984. That is MU's quotation demonstrated in a paragraph.

Distinctions that carry marks

What this does NOT mean

It does not mean every wide discretion is unconstitutional. Width is not the vice; absence of any standard is, and the standard may come from the scheme of the Act.

It does not mean guidelines must be in the statute. They may be made by the authority, and a published policy is often enough.

It does not mean a court prefers rules to discretion. It requires that discretion be structured, not that it be abolished.

Quick revision

A power with no standard is a power to discriminate, so the vice is in the conferment as well as in the exercise. Conferment: an unguided and uncanalised power offends Article 14, as in Nergesh Meerza and Delhi Transport Corporation, and a court reads down before it strikes down. Exercise: arbitrariness is unequal and unconstitutional, which is Royappa. A wide power is saved by guidelines in the Act, guidelines made by the authority, reading down, and procedural safeguards.

Test yourself

1. Why is an unguided power a discrimination? Because identical cases can lawfully be decided differently under it, which is exactly the inequality Article 14 forbids.

2. What did Delhi Transport Corporation decide about a power to terminate without reasons? That a naked and unguided power to terminate a permanent employee without notice, reasons or enquiry is arbitrary, violates Article 14 and is opposed to public policy, and should be read down where possible and struck down where not.

3. Give two ways in which a wide discretion can be saved. By a policy or standard found in the Act itself, and by published guidelines made by the authority, departure from which then requires reasons.

The tests a court uses

Did the statute make the fact a condition of the power? If so it is a jurisdictional fact and the court decides it.

Did the authority ask itself the question the statute posed? If it asked a different question, the answer is a nullity on Anisminic.

Did it act on considerations the statute excluded, or ignore those it required? Same result.

Or did it simply get the law wrong while asking the right question? Then the error is within jurisdiction and must be apparent on the record.

A worked example

A statute allows a tribunal to award compensation to a workman who suffers an injury arising out of and in the course of employment. The tribunal holds that a workman injured while travelling home was injured in the course of employment, on a construction of those words which the High Court thinks is wrong.

That is an error of law within jurisdiction: the tribunal asked the right question, which is whether the injury arose in the course of employment, and answered it. Certiorari lies only if the misconstruction is apparent on the record, and Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, is the limit.

Now suppose the tribunal awarded compensation to a person who was not a workman at all under the Act. That is jurisdictional: the status of workman is the condition of the power, so the award is a nullity, and no ouster clause protects it.

Distinctions that carry marks

What this does NOT mean

It does not mean the distinction is dead in India. It survives in the four places listed above.

It does not mean every misconstruction is jurisdictional. Indian courts have not gone as far as English law, and Ujjam Bai has not been overruled.

It does not mean a party should plead only one. A careful petition pleads both, because the same defect can often be described either way.

Quick revision

Jurisdictional error goes to the power and makes a nullity; error of law within jurisdiction is a mistake made lawfully and is quashable only if apparent on the record. Anisminic merged much of the two by treating asking the wrong question, considering the irrelevant and ignoring the relevant as jurisdictional. In India the distinction still matters for Article 32 under Ujjam Bai, for finality clauses under Tarachand Gupta, for the requirement that the error be apparent under Syed Yakoob, and for whether an order may be ignored.

Test yourself

1. Why did the distinction matter so much before Anisminic? Because a finality clause protected an error within jurisdiction but could not protect a nullity, so the classification decided whether the citizen had any remedy at all.

2. Where does the distinction still decide an Indian case? Under Article 32, because Ujjam Bai holds that an error within jurisdiction infringes no fundamental right, and under a finality clause, because only an order made under the Act is protected.

3. Give Lord Reid's three descriptions of a jurisdictional error. Asking the wrong question, taking into account something the tribunal was not entitled to consider, and refusing to take into account something it was required to consider.

Why it matters here. It is the general rule in India, it fixes the standard of the reasons required, and it is a Constitution Bench, which is what an examiner is looking for.

What counts as adequate reasons

They must show the points in controversy were considered. Not a recital of the submissions, but an indication of why one was preferred.

They must be intelligible. A reason which does not disclose the ground is no reason.

They must be contemporaneous. Reasons supplied for the first time in an affidavit in the writ petition are looked at with suspicion, because they may be an afterthought.

They may be brief. Brevity is not the vice, as Mukherjee says in terms.

Where reasons are not required

Legislative action. No reasons are owed for a rule or a price fixation: Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277.

Where the statute excludes them expressly or by necessary implication.

Purely administrative acts affecting no right, such as an internal transfer on ordinary terms.

Where disclosure would defeat the purpose, as with some security matters, though even then the material must ordinarily go to the court.

The connection with the other grounds

An unreasoned order makes non-application of mind impossible to disprove; it hides an improper purpose; and it prevents the court from testing relevance. That is why Padfield v. Minister of Agriculture, Fisheries and Food, [1968] AC 997, treats unexplained silence as permitting an inference where the decision is unexplainable on any lawful ground.

A worked example

A departmental promotion committee supersedes an officer. The order says only that he was considered and not found suitable. He asks for reasons and is told that the committee's proceedings are confidential.

On Mukherjee the committee exercises a quasi-judicial function affecting his right to be considered, and reasons are owed, whether or not an appeal lies. Confidentiality of the deliberations does not excuse the absence of any indication of the ground; at the least the officer is entitled to know that his annual reports for stated years were the basis. The order will be set aside and remitted for a fresh consideration with reasons recorded, which is the standard relief.

What this does NOT mean

It does not mean every order needs a judgment. Mukherjee says the opposite.

It does not mean reasons must always be communicated. They must be recorded; communication is ordinarily required where the person is to challenge the order, and a statute may permit facts to be withheld in the public interest.

It does not mean an order with reasons is safe. Bad reasons destroy an order faster than none, because they show the ground on which it fell.

Quick revision

Reasons are required of an administrative authority exercising quasi-judicial functions, whether or not an appeal, revision or judicial review lies, unless the statute excludes them: S.N. Mukherjee, a Constitution Bench. They need not be elaborate but must be clear and explicit enough to show that the points in controversy were considered. Not required for legislative action, which is Sitaram Sugar, nor where the statute excludes them. Silence permits an adverse inference on Padfield, and reasons supplied later in an affidavit are treated as an afterthought.

Test yourself

1. State the rule in S.N. Mukherjee. That except where the statute expressly or by necessary implication provides otherwise, an administrative authority exercising quasi-judicial functions must record reasons, irrespective of whether the decision is subject to appeal, revision or judicial review.

2. How elaborate must the reasons be? Not as elaborate as a judgment; the extent depends on the facts, and what is necessary is that they be clear and explicit enough to show that the points in controversy were considered.

3. Are reasons required for a price fixation order? No. Price fixation is legislative in character, so neither a hearing nor reasons are owed: Sitaram Sugar.

Waiver

An objection to bias must be taken at the earliest opportunity. A party who knows the facts, appears before the body and takes his chance cannot complain afterwards: G. Sarana v. University of Lucknow, AIR 1976 SC 2428, applying Manak Lal.

Facts. The appellant and another candidate applied for a Professorship at Lucknow University. A selection committee including three experts interviewed them and recommended the other candidate. The appellant then contended that two of the expert members were biased against him.

Held. The appeal failed. Although he knew all the relevant facts, he appeared before the committee voluntarily and took a chance of a favourable recommendation, and having done so it was not open to him to turn round and question its constitution.

Why it matters here. It is the practical rule a student must remember: raise the objection before the body, in writing, and do not wait for the result.

A worked example

A departmental enquiry into a bank employee is conducted by an officer who had earlier submitted the complaint against him. The employee attends four hearings without objection, is dismissed, and then complains of bias.

The bias is clear: the complainant is the judge, which is the strongest form of subject-matter bias. But he attended without objection, which is G. Sarana, so the bank will argue waiver. The answer usually turns on whether he knew the enquiry officer was the complainant, since waiver requires knowledge; if the connection appeared only from documents disclosed at the end, there is no waiver and the dismissal falls.

What this does NOT mean

It does not mean actual prejudice must be shown. The test is the reasonable apprehension.

It does not mean the decision is examined on the merits. A correct decision by a disqualified adjudicator is still void.

It does not mean every connection disqualifies. A remote or general interest does not, and the doctrine of necessity may require a disqualified authority to act where there is no other.

Quick revision

Bias is an operative prejudice which disqualifies. The rule is nemo judex in causa sua; the reason is that justice must be seen to be done; the test is reasonable apprehension, from Manak Lal; the kinds are pecuniary, personal, subject matter, policy and departmental; the effect is that the decision is void whatever its merits. Kraipak extends the rule to administrative action. An objection must be taken at once or it is waived, which is G. Sarana. As a ground it differs from mala fides in that no motive is required.

Test yourself

1. What is the test for bias? Whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him: Manak Lal.

2. Does it matter that the decision was correct? No. A decision by a disqualified adjudicator is vitiated whatever its merits, because the vice is in who decided.

3. When is an objection to bias lost? When the party, knowing the facts, appears and takes his chance before the body without objecting: G. Sarana.

Not to legislative action. Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277.

Not where the statute excludes them, subject to [Exclusion of Natural Justice].

Not where nothing turns on it, which is the useless formality theory in [The Useless Formality Theory], a doctrine to be handled carefully.

The modern qualification

Canara Bank v. V.K. Awasthy, AIR 2005 SC 2090, restates the position for a modern court: natural justice is not an unruly horse and the 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. So a breach is not a talisman, and a complaint of a technical defect which caused no prejudice will fail.

A worked example

A university cancels a candidate's examination result for using unfair means. It relies on an invigilator's report which the candidate never saw, holds no hearing, and the order is signed by the Vice-Chancellor although the statutes vest the power in an Unfair Means Committee.

Every branch of this module is engaged. Civil consequences plainly follow, so fairness is owed on Binapani Dei. The undisclosed report offends the disclosure requirement of [Notice, Disclosure and the Materials Relied On]. The absence of a hearing offends audi alteram partem. The signature of the wrong authority is a Module II point. And the answer to the university's argument that the candidate would have been found guilty anyway is that prejudice is the test and here the candidate never had the chance to explain the report at all.

Distinctions that carry marks

What this does NOT mean

It does not mean natural justice adds a trial to every decision. It adds fairness proportionate to the consequences.

It does not mean a technical breach always wins. Canara Bank makes prejudice the test.

It does not mean the two rules are exhaustive. The duty to give reasons has grown into a third, and legitimate expectation has grown into a fourth.

Quick revision

Two rules: nemo judex in causa sua and audi alteram partem, together called natural justice, procedural fairness or the duty to act fairly. Kraipak: not embodied rules, they supplement the law, and the question is whether observance was necessary for a just decision on those facts. Binapani Dei: they apply wherever civil consequences follow, whatever the label. Not to legislative action, which is Sitaram Sugar. In India they are constitutional through Articles 14 and 21. Canara Bank makes prejudice the practical test.

Test yourself

1. Name the two rules and give their meaning. Nemo judex in causa sua, no one may be a judge in his own cause, and audi alteram partem, no one may be condemned unheard.

2. What does it mean to say they are not embodied rules? That their content is not fixed in advance but varies with the statutory framework, the nature of the enquiry and the consequences, so the court asks what fairness required on those facts.

3. When do they not apply at all? To legislative action, where a statute excludes them expressly or by necessary implication, and where no prejudice can result.

Why it matters here. It states the test, it states the reason, and it states the qualification about waiver, all in one case.

The extension to administrative bodies

A.K. Kraipak v. Union of India, AIR 1970 SC 150, carries the rule into administrative action. A selection board is not a tribunal and decides no lis, and yet a member who was himself a candidate disqualified it. The Court held that 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 extension is what makes the rule matter in this paper, because most administrative decisions are not judicial in form.

The three questions to ask

1. Has the decision-maker an interest? Pecuniary, personal, or in the subject matter.
2. Would a reasonable person, knowing the facts, apprehend that the interest might have influenced the decision?
3. Was the objection taken at the first opportunity? If not, it may be waived.

A worked example

A district committee decides applications for the allotment of shops in a new market. One member's brother-in-law is an applicant. The member does not withdraw, and the brother-in-law is allotted a shop.

The rule is broken. The member had a personal interest, a reasonable person would apprehend that it might have influenced the committee, and no proof of actual influence is needed. If the member had withdrawn while his brother-in-law's application was considered, Kraipak would still be a difficulty, because he would have sat on the competing applications, which are the mirror image of his relative's. The safe course is that he takes no part at all, and the committee records that he did not.

What this does NOT mean

It does not mean the decision-maker must be an empty vessel. Prior knowledge of the subject, or of the parties in a general way, is not bias, and a specialist body is chosen for its knowledge.

It does not mean a policy view disqualifies. A member who has publicly supported a policy is not disqualified from applying it, which is policy bias and is treated indulgently.

It does not mean the rule is absolute. The doctrine of necessity may require a disqualified authority to act where there is no other, which is [The Doctrine of Necessity].

Quick revision

No one may judge his own cause. The purpose is confidence, so the test is appearance rather than proof: whether a litigant could reasonably apprehend that a bias attributable to a member might have operated against him, which is Manak Lal. Kraipak carried the rule into administrative action, so selection boards and committees are bound. Three questions: is there an interest, would a reasonable person apprehend influence, and was the objection taken at once. Prior knowledge and a policy view do not disqualify, and necessity may override.

Test yourself

1. Why is the test one of appearance rather than actual influence? Because actual influence on another mind cannot be proved or disproved, and the purpose of the rule is public confidence, which requires that justice be seen to be done.

2. Did the chairman's earlier appearance disqualify the tribunal in Manak Lal? Yes, but the appellant had waived the objection by appearing and taking his chance, so a fresh enquiry was directed.

3. What did Kraipak add? That the rule applies to administrative bodies, including a selection board which decides no dispute between parties.

Why it matters here. It is the clearest Indian authority on subject-matter bias, and it also fixes the limit of the doctrine of necessity.

Four, policy bias

A general predisposition about a question of policy is not a disqualification. A minister who has publicly committed himself to nationalising road transport is not disqualified from approving a scheme; if he were, no policy could ever be implemented, because the person who decides is the person who was elected to hold the view.

Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308, is often cited in this connection. The scheme there fell not because the Government had a policy but because the Secretary heard the objections and the Chief Minister decided them, which is a different vice, worked in [Institutional Decisions: He Who Decides Must Hear].

Five, departmental bias

The same department frames the policy, investigates the breach and decides the case. Some degree of this is unavoidable in a modern administration, and the law tolerates it, requiring instead that the deciding officer be different from the investigating officer and that the material be disclosed. Where the same individual does both, the objection is good: State of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86, is the extreme case, where the officer conducting the enquiry became a witness against the delinquent and then found him guilty, and the Court held the proceedings so contrary to natural justice that the resulting order was a nullity.

A worked example

A tender committee for a public hospital consists of the medical superintendent, the accounts officer and an outside expert. The expert is a director of one of the bidding companies; the superintendent's wife holds fifty shares in another bidder; and the accounts officer wrote the tender conditions and now sits in judgment on compliance with them.

The expert is disqualified by personal and subject-matter bias. The superintendent is disqualified by pecuniary bias, and the size of the holding is irrelevant. The accounts officer is a case of departmental bias, which by itself is tolerated, because drafting conditions and applying them is the ordinary work of an administration.

Distinctions that carry marks

What this does NOT mean

It does not mean any connection disqualifies. Remoteness matters everywhere except in pecuniary bias.

It does not mean withdrawal always cures. Kraipak and J. Mohapatra both say it does not, where the member sits on competing claims.

It does not mean departmental bias is harmless. It becomes fatal where the same person performs both functions, as in Mohammad Nooh.

Quick revision

Five kinds. Pecuniary, automatic whatever the amount. Personal, tested by reasonable apprehension, Manak Lal. Subject matter, Kraipak and J. Mohapatra, and withdrawal on one's own case does not cure participation on competing cases. Policy, which does not disqualify. Departmental, tolerated in general but fatal where the same individual investigates and decides, as in Mohammad Nooh. J. Mohapatra also limits the doctrine of necessity: it does not apply where an unbiased body could have been constituted.

Test yourself

1. Why does pecuniary bias disqualify automatically? Because the law refuses to measure the amount or to enquire whether it influenced the decision; any financial stake in the outcome is enough.

2. Why did abstention not save the committee in J. Mohapatra? Because the author-members took part when other books were considered, and the selection was one exercise, so their participation affected the whole of it.

3. Which kind of bias does not disqualify, and why? Policy bias, because the person who decides is often chosen precisely for the policy view he holds, and to disqualify him would make policy unimplementable.

A worked example

A disciplinary enquiry against a college lecturer is conducted by a committee of three. One member had, six months earlier, written a letter to the management complaining about the lecturer's conduct in a staff meeting. Another member had taught the lecturer twenty years ago. The third had, in an unrelated case, upheld a similar charge against another employee.

The first is disqualified: a member who has complained about the person is in substance a party, and a reasonable person would apprehend that his mind was made up. The second is not: a teaching relationship two decades old is not material. The third is not: a decision in an earlier and unrelated case is not bias but experience, and if it were, no adjudicator could sit twice.

Distinctions that carry marks

What this does NOT mean

It does not mean an allegation is enough. The facts creating the apprehension must be pleaded and shown.

It does not mean the adjudicator is accused of dishonesty. The rule disqualifies without any imputation, which is why courts say the finding casts no reflection on the person concerned.

It does not mean the test is different for administrative bodies. Kraipak applies the same test to a selection board.

Quick revision

The Indian test is reasonable apprehension: whether a litigant could reasonably apprehend that a bias attributable to a member might have operated against him, from Manak Lal. It is objective, so neither the litigant's suspicion nor the adjudicator's assurance decides it. What must be shown is a connection, its materiality, and knowledge for the purpose of waiver. The remedy is to set aside and direct a fresh decision by an unbiased authority.

Test yourself

1. State the Indian test in the words of the case. Whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him.

2. Why is proof of actual bias not required? Because what goes on in another mind cannot be proved, and the object of the rule is public confidence, which turns on appearance.

3. What is the usual remedy? The decision is set aside and a fresh enquiry or decision by an unbiased authority is directed, rather than the aggrieved party simply succeeding.

He is disqualified by subject-matter bias, because he is in substance being asked to review his own act. But the Act names him and no one else, and the dispute must be decided. So the doctrine of necessity permits him to decide, and the safeguards become correspondingly important: he must disclose his position, hear both sides fully, and record reasons, because those are the only protections the parties now have.

Contrast a case where the Act allows the Chancellor to nominate a person to decide such disputes. Then there is no necessity, and J. Mohapatra applies.

Distinctions that carry marks

What this does NOT mean

It does not mean bias becomes lawful. It means the decision is not set aside on that ground alone.

It does not excuse the other requirements of fairness. Notice, hearing, disclosure and reasons remain.

It does not apply where the statute provides a substitute. Many Acts do, precisely to avoid the problem.

Quick revision

Necessity permits a disqualified adjudicator to act where he is the only one competent and the matter must be decided. Conditions: no other authority, a real need for a decision, a genuine necessity rather than convenience, and full compliance with every other requirement of fairness. J. Mohapatra fixes the limit: where an unbiased body could have been constituted, the doctrine does not apply. Typical situations are a single statutory authority, a quorum that cannot be made otherwise, and a matter affecting every possible adjudicator.

Test yourself

1. State the two conditions in one sentence. That there is no other authority competent to decide, and that the matter must be decided rather than left.

2. Why did the plea of necessity fail in J. Mohapatra? Because many qualified persons in the State were not authors of books under consideration, so an unbiased committee could have been constituted.

3. Does necessity excuse a failure to give a hearing? No. It excuses only the disqualification; notice, hearing, disclosure and reasons are still required, and become more important because they are the only remaining protection.

Why it matters here. It converts natural justice from a rule of construction into a constitutional requirement, and it introduces the idea that the rule is moulded rather than excluded.

Article 21 and livelihood. D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259, carries the rule into a private employment governed by certified standing orders, holding that termination which deprives a workman of his livelihood must follow a just, fair and reasonable procedure, so a standing order deeming abandonment after eight days of absence must be read as requiring an opportunity to explain.

When the rule applies

Wherever civil consequences follow. Loss of a licence, of employment, of a benefit, of property, of reputation.

Even to an interim order that finally affects rights, though a lesser hearing may suffice.

Even where the statute is silent. Silence is not exclusion.

Not to legislative action. Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277.

A worked example

A State cancels a scholarship awarded to a student after an anonymous complaint that her father's income exceeds the limit. The order is made without notice and is communicated by a one-line letter.

Civil consequences plainly follow, so a hearing was owed on Binapani Dei, and the silence of the scheme does not exclude it on Maneka Gandhi. The failure to disclose the complaint offends the disclosure requirement. If the State says a hearing would have made no difference because the income certificate speaks for itself, the answer is that the student was never given the chance to produce a corrected certificate, so prejudice is plain. The order is quashed with a direction to decide after hearing her.

What this does NOT mean

It does not mean an oral hearing is always required. A written opportunity is often enough, and what is required depends on the circumstances.

It does not mean the rule survives an express statutory exclusion. It may be excluded, subject to Article 21.

It does not mean a breach always leads to relief. Prejudice is the practical test: Canara Bank v. V.K. Awasthy, AIR 2005 SC 2090.

Quick revision

Hear the other side. Two limbs: notice of the case, and a fair opportunity to answer. It applies wherever civil consequences follow, whatever the label, which is Binapani Dei, and to administrative action, which is Kraipak. In India it is constitutional: Maneka Gandhi makes fairness part of Article 21 and holds that silence in a statute does not exclude it, and that the rule may be moulded. D.K. Yadav carries it into private employment through the right to livelihood. It does not apply to legislative action, and a breach is tested by prejudice.

Test yourself

1. What are the two limbs of the rule? Notice of the case to be met, in sufficient detail and with sufficient time, and a fair opportunity to answer it before the decision is made.

2. Does silence in a statute exclude a hearing? No. Maneka Gandhi holds that the rule is not excluded merely because the statute is silent, and that it may be moulded to the situation.

3. Which case carries the rule into private employment, and how? D.K. Yadav, through Article 21: termination deprives the workman of his livelihood, so it must follow a just, fair and reasonable procedure, and a deeming clause must be read as requiring an opportunity to explain.

Why it matters here. It is the corrective to a mechanical approach: a fair hearing is measured by whether the person could meet the case, not by whether every step was taken.

A checklist for a problem question

1. Was he told what was alleged?
2. Was he given the material relied on?
3. Was he allowed to answer, and in a form suited to the issues?
4. Was he allowed to produce his own material, and to test theirs where credibility mattered?
5. Did the person who heard him decide?
6. Were reasons recorded?
7. If a step was missed, did it cause prejudice?

A worked example

A municipal corporation proposes to blacklist a contractor. It issues a notice saying that his conduct in respect of contract number 47 is under consideration and that he may show cause within three days. It relies on a vigilance report he never sees, hears him for five minutes, and the order is signed by the Commissioner although the Additional Commissioner heard him. The order says the explanation was found unsatisfactory.

Six defects against the checklist. The notice does not state the allegation. Three days is not reasonable time for a blacklisting. The vigilance report was not disclosed, which is Karunakar. The hearing was inadequate for a matter with those consequences. The person who heard did not decide, which is Gullapalli. And the reasons are not reasons at all, which is S.N. Mukherjee. Prejudice is obvious, so the Canara Bank qualification does not help the corporation.

Distinctions that carry marks

What this does NOT mean

It does not mean the enquiry must look like a trial. Administrative bodies are not bound by the Evidence Act or the Code of Civil Procedure.

It does not mean every missed step is fatal. Prejudice decides.

It does not mean the list is closed. Legitimate expectation may add a right to consultation, and a statute may add more.

Quick revision

Six parts: notice, disclosure, an opportunity to answer, evidence and where necessary cross-examination, a decision by the person who heard, and reasons. The core, which never varies, is knowing the case and being able to answer before the decision. The rest varies with the statute, the issues and the consequences. Canara Bank makes prejudice the practical test, and Karunakar, Gullapalli and S.N. Mukherjee supply three of the six parts.

Test yourself

1. Which two elements of a fair hearing never vary? Knowing the case to be met, and having an opportunity to answer it before the decision is made.

2. What is the practical test where a step has been missed? Whether prejudice has in fact been caused: Canara Bank.

3. Is an oral hearing always required? No. It is required where facts are disputed, credibility is in issue, or the consequences are grave; otherwise a written opportunity may suffice.

Material whose disclosure would harm the public interest, on a properly made claim of privilege, and even then the material should ordinarily be shown to the court.

Sources whose identity is protected by statute, as with some informant provisions, where the substance must nevertheless be put to the person.

The connection with Article 22(5)

In preventive detention the same principle has a constitutional form. Article 22(5) requires the grounds of detention to be communicated as soon as may be and the earliest opportunity of making a representation to be afforded, and the courts have held that grounds without the documents referred to in them are no grounds, because the right to represent becomes illusory.

A worked example

A hospital dismisses a nurse after an enquiry. The enquiry officer's report, which finds her guilty on two of four charges, is not given to her. The disciplinary authority dismisses her, relying on the report and also on a complaint letter from a patient's family which was never put to her.

Two breaches. The report is material on which the authority acted, so it should have been furnished, which is Karunakar. The complaint letter is material collected behind her back and used against her, so its non-disclosure is fatal. Prejudice is obvious in the second case: she might have shown that she was not on duty that day. The dismissal is set aside, and the usual relief is that the enquiry is remitted from the stage of the defect.

Distinctions that carry marks

What this does NOT mean

It does not mean every document in the file must be given. Only what is relied on.

It does not mean a defective notice can never be cured. A fuller notice may be issued and the process begun again.

It does not mean prejudice is presumed. Karunakar requires it to be considered, and a person who admits the facts will find prejudice hard to show.

Quick revision

A notice must state the allegation with particulars, the action proposed, the material relied on and a reasonable time. Disclosure is part of the hearing: the enquiry officer's report must be furnished before the disciplinary authority decides, whether or not the rules require it, and non-supply is tested by prejudice, which is Karunakar. Material collected behind the back and used is ordinarily fatal. Article 22(5) applies the same principle to preventive detention, where grounds without the documents referred to are no grounds.

Test yourself

1. Why must the enquiry officer's report be supplied? Because it is the material on which the disciplinary authority acts, so supplying it is part of the reasonable opportunity and of natural justice: Karunakar.

2. Does non-supply automatically invalidate the order? No. The court must consider whether prejudice was caused, and where none is shown the order stands.

3. What is the position of material collected behind the person's back? It cannot be used unless it is put to him, because otherwise he has no opportunity to answer the case actually being decided.