Void or Voidable: The Effect of a Breach of Natural Justice
Chapter Ninety-Three
Syllabus topic 5, "Procedural fairness"
Pages 279 to 281 of 430
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.
Void or Voidable: The Effect of a Breach of Natural Justice
But the person must still come to court. An order which appears valid on its face will be acted on by everybody until a court says otherwise, and a citizen who ignores it takes a risk.
And when he comes, the ordinary discretionary bars apply. Delay, acquiescence, alternative remedy and conduct all operate, which is the whole of Module IV. So a void order can in practice become unchallengeable.
Where the distinction still decides something
Collateral challenge. Whether the invalidity can be raised as a defence in another proceeding, for instance in a prosecution for disobeying the order.
Limitation and laches. A nullity is in principle unaffected by time, though the court's discretion is not.
Acquiescence and waiver. A void order cannot be validated by consent, whereas a voidable one may be, which is why waiver operates in bias cases as in G. Sarana v. University of Lucknow, AIR 1976 SC 2428.
The effect of the remedy. If void, the order never had effect, so consequential acts fall with it; if voidable, acts done before it was set aside may stand.
The modern practical test
Indian courts have moved the argument away from labels and towards prejudice: Canara Bank v. V.K. Awasthy, AIR 2005 SC 2090, and Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074, both ask whether prejudice was caused rather than whether the order is void.
That is the answer an examiner is looking for at LL.M. level: the void or voidable debate has been overtaken by the prejudice test, and a student who states the debate and then says so has answered the question.
A worked example
An officer is dismissed without any enquiry. He does nothing for four years, then joins another employer, and is prosecuted for having obtained employment without a discharge certificate. He wants to argue that the dismissal was void.
In theory he is right: a dismissal without an enquiry is a nullity. In practice he faces three difficulties. He cannot get the dismissal set aside after four years, because of laches. He may be met with acquiescence, having taken other employment. And whether he can raise the invalidity collaterally in the prosecution depends on the court's willingness to treat the order as a nullity for that purpose, which is exactly where the distinction still bites.
Distinctions that carry marks
| Void | Voidable | |
|---|---|---|
| Status | A nullity from the beginning | Valid until set aside |
| May it be ignored | In theory yes, in practice at the citizen's risk | No |
| Collateral challenge | Possible | Not possible |
| Waiver | Cannot validate | May validate |
| Limitation | In principle irrelevant | Relevant |
| Indian practice | Said of natural justice breaches | Said of errors within jurisdiction |
Void or Voidable: The Effect of a Breach of Natural Justice
What this does NOT mean
It does not mean a citizen should ignore an order he thinks is void. The safe course is always to challenge it.
It does not mean the label decides the case. Prejudice and the discretionary bars usually do.
It does not mean Indian law has adopted Lord Devlin's view. It has not; it says void and then applies discretionary limits.
Quick revision
Void means a nullity from the beginning; voidable means valid until set aside. Ridge v. Baldwin split on the point, the majority saying void and Lord Evershed and Lord Devlin saying voidable. Anisminic pushes towards void with the proposition that there are no degrees of nullity. India says void, as in Mohammad Nooh, but requires the person to come to court and applies the discretionary bars, so the practical difference is small. The distinction still matters for collateral challenge, limitation, waiver and the fate of consequential acts, and the modern enquiry is about prejudice.
Test yourself
1. What is the practical consequence of an order being void rather than voidable? That it may in principle be ignored, challenged collaterally, and is unaffected by limitation and waiver; but a citizen who ignores it takes the risk that a court will treat it as merely voidable.
2. What did Lord Devlin say in Ridge v. Baldwin? That if there is no jurisdiction the decision is a nullity whether the court quashes or not, but if there is jurisdiction and a miscarriage of natural justice, the decision stands good until quashed.
3. What has overtaken the debate in India? The prejudice test, applied in Karunakar and Canara Bank, which asks what the person actually lost rather than how the order should be labelled.
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.