Acting Under Dictation
Chapter Sixty-One
Syllabus topic 4, "Grounds of Review"
Pages 185 to 186 of 430
In one line
The authority the statute named must decide, and an authority that takes orders from somebody else has not decided at all.
In the wording a student can write in an exam: acting under dictation is the exercise of a discretion at the direction of another person or body, so that the authority in whom the statute vested the power does not itself decide; the resulting order is void, because the statute conferred the power on that authority and on no other.
Why it is a distinct ground
Because the vice is different from the others in this group. In improper purpose the authority decided for the wrong reason; in irrelevant considerations it decided on the wrong material; here it did not decide. The order may be entirely sensible and still void.
The three situations
One, an express direction. A superior instructs the authority what order to pass, and it passes it. The file usually shows this.
Two, a general instruction that removes the discretion. A department circular tells all licensing officers to refuse every application of a class. Each officer then has no discretion left, though the statute gave him one.
Three, a deferred decision. The authority refers the matter to another body and adopts its conclusion without examining it.
What is lawful, and the line
Consultation is lawful. An authority may take advice from anybody, including a superior, so long as it makes the decision itself.
A policy is lawful. An authority may adopt a policy and apply it, provided it remains willing to consider an exceptional case, which is [Fettering a Discretion by a Self-Imposed Rule].
A statutory direction is lawful. Where the Act itself provides that the authority shall be guided by directions of the Government, obedience is not dictation; but such a provision is construed narrowly, and a direction which decides an individual case rather than laying down policy is usually outside it.
Approval or sanction is lawful. Where the Act requires an order to be approved by a higher authority, that is a statutory scheme and not dictation.
The line, in one sentence: advice which the authority is free to reject is lawful; an instruction which it treats as binding is not.
The Indian illustration
The clearest Indian illustration is in the natural justice line rather than in a separate line of dictation cases: Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308, where the Secretary heard the objections to a nationalisation scheme and the Chief Minister decided them. The Court set the approval aside, holding that where a statute requires a hearing before a decision, the authority that hears must be the authority that decides, and divided responsibility vitiates the exercise.
Acting Under Dictation
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
| Lawful | Unlawful | |
|---|---|---|
| Advice or consultation, freely accepted or rejected | Yes | |
| A policy applied with an open mind to exceptions | Yes | |
| Approval or sanction required by the Act | Yes | |
| An instruction treated as binding | Yes | |
| A direction deciding the individual case | Yes | |
| Adopting another body's conclusion without examining it | Yes |
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.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.