Void or Voidable: The Effect of a Breach of Natural Justice

In one line

If an order made without a hearing is void it never existed and may be ignored; if it is voidable it stands until a court sets it aside, and the difference decides what a citizen may safely do.

In the wording a student can write in an exam: an order made in breach of natural justice is generally treated in India as void, that is a nullity in law, but the practical position is that the person affected must still come to court to have it set aside, must come in time, and may be refused relief on discretionary grounds, so the distinction between void and voidable has less practical effect than its name suggests.

Why the question arises at all

Because a nullity is nothing. If an order is void, then in strict theory the person affected may ignore it, may raise its invalidity as a defence in any proceeding, need not fear limitation, and cannot be met with the argument that he acquiesced. If it is voidable, every one of those is untrue.

The split in Ridge v. Baldwin

Ridge v. Baldwin, [1964] AC 40, is where the modern argument starts. The majority declared the dismissal null and void. Lord Evershed and Lord Devlin took the view that the breach made the committee's decision voidable rather than void ab initio, Lord Devlin drawing the distinction between a wrong exercise of a jurisdiction which a body has and a usurpation of a jurisdiction which it has not, and observing that if there is no jurisdiction the decision is a nullity whether the court quashes or not, while if there is jurisdiction but a miscarriage of natural justice, the decision stands good until quashed.

That is the clearest statement of both positions in one case, which is why MU's question about Ridge v. Baldwin can reach this point.

Anisminic and the theory of nullity

Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147, pushes towards void. Lord Reid said that a determination which is a nullity is not a determination at all, and that there are no degrees of nullity. On that reasoning, a decision made in breach of natural justice is not a decision, because the authority did something in the course of the enquiry which made its decision a nullity.

The Indian position

Indian courts say void, and then behave as though the order must nevertheless be set aside. Three propositions describe the position honestly.

The order is a nullity in theory. An order made without jurisdiction or in flagrant breach of natural justice is void, and State of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86, describes proceedings so contrary to natural justice that the resulting order is a nullity.